THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


WEST   VIRGINIA   COURTS 


AS  APPROVE!)   BY   THE 


SUPREME  COURT  OF  APPEALS  OF  THE  STATE. 


COMPILED   AND    EDITED    BY    B.   H.  OXLEY, 

n« 

OP    THE    KANAWHA    COUNTY    BAR. 


ONE  VOLUME  IN  TWO  PARTS: 

PART    I.    THE    LAW    OF   INSTRUCTIONS. 
PART  II.     FORMS  OF  INSTRUCTIONS. 


CHARLESTON: 

THE  TRIBUNE  PRINTING  Co. , 

1906. 


COPYRIGHT,  1905, 

BY 

B.  H.OXLEY. 


INTRODUCTORY. 


The  title  of  this  book  is  its  preface  and  the  necessity 
for  this,  or  a  similar  work,  is  suggested  on  pages  1  and  2. 

A  few  paragraphs  explanatory  of  its  general  scope  and 
arrangement  will  suffice. 

The  space  allotted  to  Part  I  permits  of  dealing  with 
general  principles  only. 

In  Part  II,  with  rare  exceptions,  only  one  form  illus- 
trative of  each  propositions  involved,  is  given,  and,  as  a 
general  rule,  the  more  recent  decisions  of  the  Appellate 
Court  are  utilized. 

Indexes  and  Tables  of  Cases. 

For  convenience,  a  separate  Index  and  Table  of  Cases 
are  provided  for  each  Part,  those  for  Part  I,  preceding  it, 
and  those  for  Part  II,  following  that  subject. 

Citations. 

Authorities,  other  than  those  from  which  the  subject 
matters  of  the  text  are  taken,  will  be  found  in  the  Table 
of  Cases,  and  while  this  is  somewhat  an  innovation,  yet 
it  is  believed  that  this  plan  will  prove  to  be  of  practical 
benefit,  as  it  not  only  furnishes  a  convenient  method  of 
citations,  but  relieves  the  text  of  burdens  frequently  im- 
posed. 

Chapters  and  Subjects. 

Following  Part  I,  and  preceding  Part  II,  between  pages 
76  and  77,  will  be  found  a  synopsis,  by  Chapters  and  Sub- 
jects, giving  the  contents  of  Part  II. 
Page  References. 

Wherever  an  instruction  is  copied  into  the  Reports  the 
numbers  refer  to  the  pages  where  found,  but  when  taken 
from  the  printed  records,  references  are  had  to  the  pages 
of  the  Reports  where  approved. 

B.  H.  OXLEY. 
Charleston,  W.  Va.,  February  22,  1906. 


735529 


INDEX. 

PART  I.-THE  LAW  OF  INSTRUCTIONS. 


THE  INDEX  TO  PART  II— FORMS  OF  INSTRUCTIONS- 
FOLLOWS  THAT  SUBJECT. 

A. 

ABSENCE  OF  EVIDENCE. 

Failure  to  introduce  evidence.  40. 

ABSTRACT  PRINCIPLES. 

Instructions  must  be  based  upon  facts  proven,  16. 

ABSTRACT  PROPOSITIONS  OF  LAW. 
Asserting  erroneous  propositions,  20. 

Correct  abstract  propositions — Irrelevant   instructions,   11. 
Failure  to  connect  with  the  evidence,  20. 
Law  quoted  from  text  books,  20. 
Misleading    instructions,    20. 

ABSTRACT  QUESTIONS. 

Action  of  appellate  court  as  to,  19. 
Courts  not  required  to  instruct  as  to,  20. 

ACCOMPLICES. 

Prohibiting  instructions  as  to  weight  of  evidence  of,  47. 
Testimony  of — Action  of  appellate  court  as  to,  47. 

ACCUSED. 

Assailment  of  character  of,  52. 

Character  of,  52. 

Concerning  evidence  of  good  character  of,  53. 

Intimation  of  court's  opinion  of  guilt  of,  50. 

When  evidence  as  to  character  of  admissible,  52. 


vi  INDEX— PART  I. 

AFFIDAVITS  OF  JURORS.    See  JUBOBS. 
AFTER-DISCOVERED  EVIDENCE.     See  NEWLY-DISCOVERED  Evi- 

DK.NCK. 

ALTERATION  OF  THE  RECORD.     See  RECORD. 

AMBIGUOUS  INSTRUCTIONS. 

Explaining  the  meaning  of  instructions,  14. 
Qualification  as  to,  8. 

APPELLATE   COURT. 

Comments  by  on  evidence  given  at  former  trial  not  to  be  read 

to  juries,  1. 
How  erroneous  instructions  given  by  trial-courts  on  abstract 

propositions  regarded  by,  19,  21. 
How  proceedings  of  trial-court  regarded  by,  59. 
How  verdict  of  juries  regarded  by,  73. 
Weighing  evidence  by,  74. 

ARBITRARY    DISREGARD    OF    EVIDENCE. 
Impeached  witnesses,  39. 

ARGUMENTS  OF  COUNSEL. 

-  Abuse  of  privileges — Necessity  for  instructions  as  to,  50. 
Failure  of  opposing  party  to  examine  material  witness,  51. 
Unauthorized    statement    of — Necessity    for    instructions    as 
to,  50. 

ASKING    INSTRUCTIONS— NECESSITY    FOR. 
Degrees  of  punishment — Silent  record  as  to,  5. 
Request  for  and  refusal  of  instructions,  5. 

ASSAULT— CHARACTER  OF.     See  SELF  DEFEXSE. 
ASSUMPTION  OF  FACTS.     See  FACTS. 

AUTHOR  OF  INSTRUCTIONS. 
Who  regarded  as,  9. 

B. 

BASES    FOR    INSTRUCTION. 

Foundation  in  the  evidence  for  instructions,  5. 

BILLS  OF  EXCEPTION. 

After-discovered   evidence — Effect   of   failure  to   certify,   67. 


INDEX— PART  I.  vii 

BILLS  OP  EXCEPTION— Continued. 

Certification  of  and  making  part  of  the  record,  62. 
Certification  of  to  clerk — Duty  of  clerk  to  record,  61. 
Certifying  and  identifying  evidence — Time  for,  66. 
Certifying  proper  bills  of  exception — Requirements  as  to,  65. 
Certifying  sufficient  evidence  to  show   relevancy  of  instruc- 
tion— Necessity  for,  57. 

Properly  certifying  and  making  part  of  record — Neces- 
sity for,  62. 

Certifying — When  must  be  certified,  62. 

Error  appearing  on  face  of  record — Statute  concerning,  55. 
Error  based  on  giving  or  refusing  instructions — How  must 

be  shown,  58. 

Evidence — How  objection  to  admission  of  made  available,  64. 
Exceptions  raised  in  another  bill  of  exceptions,  58. 
Exceptions  to  part  of  instructions  only,  58. 
Exceptions — When  may  be  made,  60. 
Excluding  the  evidence — Necessity  for  relevancy  of  evidence 

excluded,    58. 

Failure  to  set  forth   sufficient  matter  to   show  whether  in- 
structions are  correct,  58. 
General  exceptions — When  sufficient,  55. 
How  they  must  present  the  case,  57. 
Making  bills  of  exception — When  must  be  made,  61. 
Noting  exceptions — When  must  be  noted,  62. 
Objection  to  admission  of  evidence — How  made  available,  64. 
Objection  to  instructions — When  must  be  offered,  60. 
Office  of  bills  of  exception — What  exceptor  must  show,  56. 
Order  book  of  trial-court — What  it  must  show,  69. 
Order  filing  bills  of  exception — Necessity  for,   68. 
Papers  attached  to  pleadings — Presumption  as  to,  70. 
Papers  purporting  to  be  part  of  bills  of  exception,  70. 

Identification  of,  70. 

Reference  to,  71. 

When  not  incorporated  under  bills  of  exception,  71. 
Petition  to  compel  trial-courts  to  sign  bills  of  exception,  65. 

What  petition  must  set  forth,  65. 
Record — What  it  must  show,  56. 

What  necessary  to  make  bills  of  exception  part  of,  68. 
Recording  bills   of  exception — When  must  be   recorded,   62. 
Saving  points — What  necessary,   59. 
Setting  out  sufficient  grounds — Insufficient  grounds,  59. 
Signature  of  trial  judge — Effect  of  want  of,  62. 

How  compelled — What  petition  must  set  forth,  65. 

Rule  requiring — Effect  of  answer  to,  65. 
Signing  bills  of  exception — When  must  be  signed,  61. 


viii  INDEX— PART  I. 

BILLS    OF    EXCEPTION— Continued. 

Skeleton   bills  of  exception — Necessity   for   transcribing,   66. 

Necessity  for  distinct  specifications  as  to,  66. 
Special  judge — Authority  of  to  sign,  62. 
Statute  concerning  error  appearing  on  face  of  record,  55. 
Stenographic  reports — How  made  part  of  a  record,  65. 

Necessity  for  distinct  specification  as  to,  66. 
Trial-courts — How  compelled  to  sign  and  certify  bills  of  ex- 
ception, 65. 

Effect  of  answer  to  rule  as  to,  65. 

What  petition  must  set  forth,  65. 

Signature  of  trial-judge — Effect  of  want  of,   62. 
Tendering  bills  of  exception — When   must  be   tendered,   61. 
Waiving    points — 'When    regarded    as    waived,    59. 
What  bills  of  exception  and  record  must  show,  56. 

BOOKS. 

Instructions  containing  paragraphs  from  prohibited,  24. 

BURDEN  OF  PROOF. 

Verdict  based  on  mere  conjecture,  73. 

C. 
CERTIFYING  BILLS  OF  EXCEPTION.    See  Bnxs  OF  EXCEPTION. 

CERTIFYING  THE  EVIDENCE. 

After-discovered  evidence — Effect  of  failure  to  certify,  67. 
Certifying  all  the  evidence — Necessity  for,  63. 

Statutory  provision  as  to,   63. 
Certifying  either  the  facts  or  the  evidence — Necessity  for,  64. 

Statutory   provision   as   to,   64. 

Certifying  the  facts  and  not  the  evidence  not  prohibited,  64. 
Objection  to  admission  of  evidence — How  made  available,  64. 
Proper  bills  of  exception — Compelling  trial-courts  to  sign  and 

certify,   65. 
Relevancy  of  instruction — Necessity  for  certifying  sufficient 

evidence  to  show,  57.  58. 

Skeleton    bills   of   exception —   For    what    purpose    may    be 
adopted,  66. 

Certifying  and  identifying  such  evidence — Time  for,  66 
Stenographic  reports — How  made  part  of  the  record,  65. 

Necessity  for  distinct  specifications  as  to,  66. 
Trial-courts — Compelling  to  sign  and  certify  proper  bills  of 
exception,  65. 

Rule  as  to — Effect  of  answer  to,  65. 
Verdict  plainly  contrary  to  the  evidence — Effect  of,  64. 


INDEX— PART  I.  ix 

CHARACTER  OF  ACCUSED.     See  ACCUSED. 
CHARTER  OF  VICTIM.    See  VICTIM. 
CIRCUMSTANTIAL  EVIDENCE.     See  EVIDENCE. 
CLASSIFICATION  OF  WITNESSES.     See  WITNESSES. 

CLERKS  OF  TRIAL  COURTS. 

Duty  of  to  record  bills  of  exception,  61. 

COMPETTENCY  OF  EVIDENCE.     See  EVIDENCE. 

COMPETENCY  OF  WITNESSES. 

As  to  one  convicted  of  felony,  37. 
By  whom  competency  determined,  36. 

Wife  not  a  competent  witness  against  her  husband — When, 
37. 

CONFLICTING  EVIDENCE.     See  EVIDENCE. 

CONFLICTING   INSTRUCTIONS.     See   CONTRADICTORY   INSTRUC- 
TIONS. 

CONFLICTING  THEORIES. 

Different  theories  covered  by  other  instructions,  26. 

CONFUSING  OR  MISLEADING  INSTRUCTIONS. 
Abstract  propositions,  24. 

Abstract  questions — Courts  not  required  to  instruct  as  to,  19. 
Action  of  appellate  courts  as  to  erroneous  instructions 

on,  19. 

Conflicting  instructions,  24. 
Evidence  tending  to  prove  case — Want  of,  24. 
Doubt  as  to  meaning  intended,  22,  23. 
Immaterial  issues,  25. 
Irrelevant  instructions,  10. 
Irrelevant  issues,  25. 

Issues  not  material — Directing  enquiries  as  to,  25. 
Misleading  instructions,  24. 
Not  fully  stating  the  law,  24. 
Not  justified  by  the  evidence,  24. 
Paragraphs  from  books,  24. 

Proving  the  case — Necessity  for  evidence  tending  to,  24. 
Unintelligible  instructions,  24. 
Want  of  evidence  tending  to  prove  case,  24. 


x  INDEX— PART  I. 

CONJECTURAL  INSTRUCTIONS. 

Evidence  tending  to  prove  certain   facts,  26. 

CONSTRUING  INSTRUCTIONS. 

Rules  of  appellate  court  as  to,  22. 
Stating  the  law  correctly,  9. 
Susceptibility  of  two  constructions,  22. 

CONTRADICTORY    INSTRUCTIONS. 
Conflicting  theories,  26. 

Failure  of  good  instructions  to  cure  bad  instructions,  25. 
Inconsistent  instructions — Reason  for  refusal  of,  25. 
Instructions  calculated  to  mislead  the  jury,  24. 
Reasons  for  refusal  of,  25. 
Reversal  because  of,  25. 
Unintelligible   Instructions,   23. 

CONTRADICTORY  EVIDENCE.     See  EVIDENCE. 

CORRECTING  INSTRUCTIONS. 

Correcting    and    curing    defective    instructions,    12. 

COUNSEL.     See  AHGTMRXT  OF  COUNSEL. 

CURING     DEFECTIVE  INSTRUCTIONS. 

Failure   of  good   instructions   to   cure   bad   instructions,   25. 
Giving  other  proper  instructions,  12. 
Withdrawal  of  bad  instructions,  12. 

D. 

DECFSIONS  OF  APPELLATE  COURTS. 

Giving  evidence  or  facts  involved   in  similar  cases,  2 
Reading  from  to  juries  prohibited,  2. 

DEFECTIVE   INSTRUCTIONS. 
Correcting  or  curing,  12. 
Giving  other  proper  instructions,  12. 
Supplying  other  instructions,  12. 
Withdrawal  of  bad  instructions,  12. 

DEFENSE. 

Evidence  tending  to  support,  31. 
Instructions  presenting,  31. 

DEGREES  OF  PUNISHMENT. 

Failure  of  evidence  to  establish,  53. 


INDEX— PART  I.  xi 

DEGREES  OF  PUNISHMENT— Continued. 

Omission  of  instruction  as  to — Silent  record,  5. 
When  refusal  of  instruction  as  to  not  proper,  6,  7. 
Whether  murder  in  first  or  second  degree,  53. 
Whether   voluntary   manslaughter    or   homicide,    53. 

DISCRETION  OF  TRIAL  COURTS. 

As  to  failure  to  examine  witnesses,  51. 
As  to  time  for  giving  instructions,  6,  7. 
Rules  of  trial-courts — Reasonable  rules,  6. 

DISREGARDING  INSTRUCTIONS. 
Erroneous  instructions,  33. 
Following  instructions — Necessity  for,  32. 
Law  applicable  to  facts,  33. 

DISREGARDING  TESTIMONY  OF  WITNESSES. 
Province  of  court  as  to,  39. 
Province  of  jury  as  to,  39. 
Weight  of  evidence,  40. 

DOUBTFUL    MATERIAL    FACTS. 
Erroneous  instructions  as  to,  41. 
Preponderance  of  evidence,  45. 

DUTY  OF  COURTS  TO  INSTRUCT. 
Duty  to  instruct  when  asked,  7. 
Instruction  as  to  the  law — Purpose  of,  7. 

E. 

EQUIVOCAL  INSTRUCTIONS. 

Explaining  the  meaning  of  instructions,  14. 

ERRONEOUS      INSTRUCTIONS— EST      GENERAL  —  PRESUMP- 
TIONS AS  TO. 
Harmless  instructions,  32. 
When  presumption  as  to,  overcome,  32. 
Explaining  the  meaning  of  instructions,  14. 

ERRONEOUS  PROPOSITIONS. 

When  assertion  of  ground  for  reversal,  20. 

ERRONEOUS   PROPOSITIONS  OF  LAW.    See  ABSTRACT  PROPO- 
SITIONS OF  LAW. 

EVIDENCE. 

Absence  of  evidence,  40. 


xii  INDEX— PART  I. 

EVIDENCE — Continued. 

Abstract  propositions — Failure  to  connect  evidence  with,  20. 
After-discovered  evidence — Effect  of  failure  to  certify,  67,  75. 
Arbitrary  disregard  of  evidence,  39. 
Certification  of  evidence,  63. 

Admission     of     evidence  —  How     objection     to     made 

available,  64 

Certifying  all  the  evidence — Necessity  for,  63. 
Certifying  either  the  facts  proven  of  the  evidence — Ne- 
cessity for,  64. 

Certifying  facts  proven  and  not  the  evidence  not  pro- 
hibited,   64. 
Compelling  trial-courts  to  sign  bills  of  exception — What 

petition  must  set  forth,  65. 

Objection  to  admission   of  evidence — How  made   avail- 
able, 64. 
Rule    requiring    signing   bills    of    exception — Effect    of 

answer  to,  65. 
Skeleton   bills  of   exception — Necessity   for   transcribing 

taken  in,  66. 

Time  within  which  to  certify  and  identify  certain  evi- 
dence, 66. 

Stenographic  reports — How  made  part  of  the  record,  65. 
Necessity  for  distinct  specifications  as  to,  66. 
Circumstantial    evidence  —  What    necessary    for    conviction 
on,  43. 

Comparison  of  with  other  evidence,  43. 
(See  note  in  "Table  of  Cases,"  under  State  vs.  Sheppard.) 
Colorable  evidence,  46. 

Competency   of — How    determined — Preliminary   facts,   43. 
Conflicting  or  contradictory  evidence,  45,  74. 
Conflicting  theories,  26. 
Facts  supposed,  46. 

Law  applicable  to  different  theories,  46. 
Preponderance  of  evidence,  46. 
Weight  of  evidence — Specifying,  45,  74. 
Credibility  of  witnesses,  49. 

Discussion  of  evidence  by  trial-courts  prohibited,  49. 
Assuming  certain  things  as  facts,  49. 
Effect  of  evidence — Credibility  of  witnesses,  49. 
Guilt  of  accused,  50. 
Influencing  the  Jury,  49. 
Weight  of  evidence,  49. 

Excluding  evidence — Necessity  for  relevancy  of  evidence  ex- 
cluded, 67. 

Expert  evidence — Connection  of  with  other  evidence,  44. 
Failure  to  connect  abstract  propositions  with,  20. 


INDEX— PART  I.  xiil 

EVIDENCE— Continued. 

Failure  to  establish  facts,  21. 

Failure  of  instructions  to  refer  to,   11. 

Fairly  tending  to  prove  the  case,  10. 

Foundation  in  for  instruction — Necessity  for,  5. 

Functions  of  juries  as  to  weighing  evidence — How  regarded 

by  appellate  court,  74. 
Giving  undue  importance  to,  36. 

Illegal    evidence  —  Inadmissible    evidence  —  Presumption    as 
to,  75. 

Failure  to  follow  with  other  evidence,  48. 

Presumption  as  to,  75. 

When  party  cannot  complain  of,  48. 
Instructions  must  be  based  on,  11,  24. 
Instructions  not  applicable  to,  10. 
Instructions  not  justified  by,  10. 
Instructions  not  warranted  by,  31. 
Insufficient  evidence,  75. 

Intimation  of  court's  opinion  of  evidence,  18.     See  also  "Dis- 
cussion of  evidence  by  Trial  Court." 
Irrelative  evidence,  74. 
Isolated    portions    of    evidence  —  Giving    undue    prominence 

to,  47. 

Juries — Duty  of  as   to   scrutinizing  evidence,   47. 
Material  evidence — Necessity  for  as  to  evidence  excluded,  67. 
Newly  discovered  evidence,  67,  75. 

Affidavit   of  parties   seeking  new  trial   on   ground   of — 
What  it  must  show,  75. 

Effect  of  failure  to  certify,  67. 

Character  of  such  evidence — What  required,  75. 

Presumption  as  to,   75. 
Objection  to  admission  of  evidence,  64. 
Omission  of  material  facts,  21. 
Preponderance  of  evidence,  44. 

Doubtful  material  facts,  45. 

Facts  supposed,  46. 

When    the   evidence    plainly   preponderates   against   the 

verdict,  74. 
Slight  evidence,  46. 
Sound  legal  propositions,  46. 
Tending  to  prove  facts,  26. 
Uncorroborated  evidence,  46. 

Accomplices — Action  of  appellate  court  as  to  testimony 
of,  47. 
Prohibiting  instructions  as  to  weight  of,  47. 

Duty  of  jury  to  scrutinize,  47. 

Weak  evidence,  27. 


xiv  INDEX— PART  I. 

EVIDENCE— Continued. 

Weighing  evidence  by  appellate  court — Abuse  of  jury  func- 
tions. 74. 
Weight  of  evidence,  44. 

Accomplices — Instructions    as    to    weight     of    evidence 
of  prohibited,  47. 

Conflicting  evidence.   74. 

Courts  prohibited  from  instructing  as  to,  49. 

Doubtful  material  facts,  45. 

Expert  evidence — Connection  of  with  other  evidence,  44. 

Facts  not  proven,  17. 

Facts  supposed,  46. 

False  testimony  of  witnesses,  40. 

Harmless  error,  31. 

How  determined,  44. 

Influencing  the  jury,  49. 

Interest  of  party  in  result  of  verdict,  45. 

Instructions  as  to  prohibited,  47,  49. 

Remarks  of  trial  court  in  presence  of  jury  as  to,  49. 

Specifying  weight  or  value  of  testimony,  45. 

Weighing   of   evidence   by   appellate   court — Impropriety 

of,  74. 
What  must  be  certified.  57,  58. 

EXCEPTIONS  TO  EVIDENCE  AND  TO  INSTRUCTIONS,  54,  73. 
See,  also,  BILLS  OF  EXCEPTION. 

Error  appearing  on  face  of  record — Statute  concerning  de- 
fined, 55. 

Exceptions  raised  in  another  bill  of  exceptions,  58. 

General  exceptions — When  sufficient,  55. 

When  several  exceptions  are  asked  and  refused,  55. 

Necessity  for  exceptions,  54. 

Notice  as  to  exceptions — What  notice  exceptor  required   to 
give.    54. 

Office  of  exceptions — What  exceptor  must   show,  56. 

Purpose  of  exceptions,  56. 

Relevancy     of     instruction — Necessity     for     certifying     suf- 
ficient evidence  to  show,  57,  58. 

Requisites  of  bills  of  exception,  56. 

Saving  points — What   necessary,   59. 

Setting   out    sufficient    grounds,    58. 

Time   for   certifying,    excepting,    making,   noting,    objecting, 
offering,  recording,  signing  and  tendering  exceptions,  59,  60. 

To  part  of  instructions  only,  58. 

Waiving  exceptions,  54,  72. 

Waiving  points,  59. 

When    exceptions   may   be   made,    60. 


INDEX— PART  I.  xv 

EXCEPTIONS  TO  EVIDENCE  AND  TO  INSTRUCTIONS— Con- 
tinued. 

When  must  be  made,  61. 
When  may  be  tendered,  61. 

EXCLUDING   EVIDENCE. 

Necessity  for   relevancy   of  evidence  excluded,   67. 

EXISTENCE  OF  FACTS.     See  FACTS. 

EXISTENCE  OF  MALICE. 

Right  of  courts  to  define  malice,  51. 

EXPERT  EVIDENCE. 

Connection  of  with  other  evidence,  44. 

EYE  WITNESSES. 

Testimony  of  as  compared  with  circumstantial  evidence,  43. 

F. 
FACTS. 

Absence  of  evidence  for,  40. 
Admitted  or  sustained,  17,  52. 
Assumption   of  facts,   15. 

Assuming  certain  things  as  facts,  49. 

Correct  assumption  of  facts,  16. 

Facts  admitted  or  sustained  by  the  evidence,  17. 

Facts  not  conceded  as  true,  17. 

Facts  not  proven — Weight  of  evidence,  17. 

Facts  proven — Instructions  must  be  based  upon,  16. 

Facts  proven  beyond  controversy,  16. 

Facts  unsupported  by  evidence,  17. 

Facts  other  than  exist,  in  case,  17. 

Failure  to  establish,  21. 

Important  and  material  facts  not  conceded  as  true,  17. 

Intimation  of  court's  opinion  as  to,  18. 

Material  facts  not  conceded  as  true,  17. 

Weight  of  evidence,  17. 

Certifying  either  the  facts  proven   or  the   evidence — Neces- 
sity for,  64. 

Certifying  the  facts — Necessity  for,  63. 

Certifying  the  facts  proven  and   not  the  evidence  not  pro- 
hibited, 64. 

Constituting  defense,  40. 
Correct  assumption  of,  16. 
Court's  opinion  of — Giving  prohibited,  49. 
Discussion  of  by  trial — Courts  prohibited,  49. 


xvi  INDEX— PART  I. 

FACTS — Continued. 

Doubtful  material  facts,  41. 

Evidence  tending  to  establish  different  theories,  46. 

Existence  of  facts,  40. 

Absence  of  evidence,  40. 

Doubtful  material  facts,  41. 

Facts  constituting  defense,  40. 

Facts  proven,  40. 

Law  applicable  to,  41. 
Existence  of  other  facts,  42. 
Failure  of  evidence  to  establish  facts,  21. 
Giving  undue  importance  and  prominence  to,  36,  41. 
Important  and  material  facts  not  conceded  as  true,  17. 
Ignoring  material  facts,  41. 
Ignoring  others  proven,  42. 
In  evidence,  15. 

Intimation  of  court's  opinion  of,  18,  48,  49,  50. 
Instructions  must  be  based  upon  facts  proven,  16. 
Law  applicable  to,  33,  41. 
Making  specific  facts  basis  of  instruction,  42. 
Mixed  questions  of  law  and  facts — Province  of  court  as  to,  51. 

Material  allegations,  18. 

Separating  the  facts  from  the  law,  18. 

Whether  question  of  law  or  facts,  18. 
Not  conceded  as  true,  17. 
Not  proven — Weight  of  evidence,  17. 
Not  within  the  province  of  the  jury,  35. 
Omission  of  material  facts,  12. 
Omission  of  reference  to  facts,  21. 
Other  than  exist  in  case,  17. 
Or  evidence  must  be  certified,  64. 
Proven  facts,  16,  40,  42. 
Separation  of  from  the  law,  18. 

Shown  in  the  record — Misinstructing  the  jury  as  to,  35. 
Singling  out  facts,  41. 

Existence  of  other  facts,  42. 

Giving  undue  prominence  to  certain  facts,  41. 

Ignoring  material  facts  or  elements,  41,  42. 

Ignoring  other  facts  proven,  42. 

Making  specific  facts  basis  for  instruction,  42. 

Material  facts  or  elements,  42. 
Specific  facts — Making  basis  for  instruction,  42. 
State  of  facts  other  than  exist  in  case,  17. 
Sufficient  facts  to  support  hypothesis  if  instruction,  35. 
Supposed  facts — Preponderance  of  evidence,  46. 
Unsupported  by  the  evidence,  17. 


INDEX— PART  I.  xvii 

FAULTY  INSTRUCTIONS. 

Correcting  faulty  instructions,  29. 

FELONY. 

Competency  of  person  convicted  of  as  a  witness,  37. 

FOLLOWING  INSTRUCTION. 
Erroneous  instruction,  33. 
Law  applicable  to  facts,  33. 
Necessity  for  following,  32. 

FOUNDATION  IN  THE  EVIDENCE  FOR  INSTRUCTIONS. 
Necessity  for  basis  for  in  the  evidence,  5. 


G. 


GENERAL  EXCEPTIONS  TO   INSTRUCTIONS. 
When  general  exceptions  sufficient,  55. 

GIVING  UNDUE  IMPORTANCE  TO  EVIDENCE. 
When  no  general  instruction  given,  36,  47. 

GIVING  UNDUE  PROMINENCE  TO  CERTAIN  FACTS. 
Singling  out  facts,  41. 

GRADE  OF  OFFENSE. 

Failure  of  evidence  to  establish,  53. 
Whether  murder  in  first  or  second  degree,  53. 
Whether  voluntary  manslaughter  or  homicide,  53. 

GUILT  OF  ACCUSED. 

Intimation  of  court's  opinion  as  to,  50. 


H. 


HARMLESS  ERROR. 

Error  not  prejudicial  to  party  complaining,  76. 
When  evidence  preponderates,  31. 

HARMLESS  INSTRUCTIONS. 

Apparent   harmlessness — Necessity   for,   34. 

Giving  or  refusing  instructions,  34. 

Giving  undue  importance  to  the  evidence,  36. 

Incorrect  abstract  propositions,  34. 

Matter  not  within  the  province  of  the  jury,  35. 

Misinstructing  the  jury — Facts  shown  in  record,  35. 


INDEX— PART  I. 

HARMLESS  INSTRUCTIONS— Continued. 
Presumption  as  to,  34. 

Sufficient  evidence  to  support  instruction,  36. 
When  a  different  verdict  could  not  have  ben  rightly  found,  36. 

HOMICIDE. 

Failure  of  evidence  to  establish,  63. 

Whether  murder  in  the  first  or  second  degree,  63. 

Whether  voluntary  manslaughter  or  homicide,  53. 

HUSBAND  AND  WIFE. 

When  not  competent  witnesses  against  each  other,  37. 

HYPOTHETICAL  FACTS. 

Omission  of  material  facts,  21. 

HYPOTHETICAL  INSTRUCTIONS. 
Different  hypotheses,  31. 
Facts  proven  beyond  controversy,  16. 
.    Failure  of  evidence  to  establish  facts,  21. 
Omission  of  material  facts,  21. 
Omission  of  reference  to  facts,  21. 
Sufficient  evidence  to  support  hypothesis  of  instruction,  35. 

I. 

IGNORING  MATERIAL  FACTS.     See  FACTS. 
ILLEGAL  EVIDENCE.     See  EVIDENCE. 

IMMATERIAL  ISSUES. 

Misleading  and  confusing  instructions,  26. 

IMPEACHMENT  OF  WITNESSES. 

Arbitrary  disregard  of  evidence,  39. 

IMPORTANT  EVIDENCE. 

Necessity  for  relevancy  of  evidence  excluded,  67. 

IMPROPER  INSTRUCTIONS— EFFECT  OF  GIVING— AND  RE- 
FUSING PROPER  INSTRUCTIONS. 
Different  hypotheses,  31. 
Failure  to  correct — Effect  of,  32. 
Modification  of — Giving  other  instructions,  14. 

Harmless  modification  of,  16. 
Instructions  not  warranted  by  the  evidence,  31. 
Preponderance  of  evidence — Harmless  error,  31. 


INDEX— PART  I.  xix 

IMPROPER  INSTRUCTIONS— EFFECT  OF  GIVING — AND  RE- 
FUSING PROPER  INSTRUCTIONS— Continued. 
Presenting  defense,  31. 

Reversal — When  not  had  because  of,  30. 

INADMISSIBLE  EVIDENCE,     See  EVIDENCE. 

INCOMPLETE  INSTRUCTIONS. 

Correcting  or  curing  bad  instructions,  12. 
Giving  other  proper  instructions,  12. 
Supplying  other  proper  instructions,  12. 
Withdrawal  of  bad  instructions,  12. 

INCONSISTENT  INSTRUCTIONS.     See  CONTRADICTORY  INSTRUC- 
TIONS. 

INCONSISTENT  LEGAL  PROPOSITIONS. 

Making  case  turn  on  one  hypothesis  only,  23. 

INFLUENCING  THE  JURY. 

Remarks  of  trial-judge  in  presence  of,  49. 
Assuming  certain  things  as  facts,  49. 
As  to  the  guilt  of  accused,  50. 
Discussion  of  evidence,  49. 
Weight  of  evidence,  49. 

INSUFFICIENT  EVIDENCE.     See  EVIDENCE. 

INTEREST  OF  PARTIES  TO  SUIT. 
In  result  of  verdict,  45. 

INTELLIGIBLE  INSTRUCTION. 

Right  of  party  to  have  given  in  his  own  language,  8. 

INTERPOLATION  IN  INSTRUCTION. 

Giving  another  having  the  effect  of    an  improper  modifica- 
tion of,  13. 

Instruction  properly  drawn  and  requested,  13. 
Modification  of,  13. 

INTERPRETATION  OF  INSTRUCTION. 

Propositions  at  variance  with  the  law  applicable  to  the  evi- 
dence, 22. 

INTIMATION    OF   COURT'S    OPINION    OF   EVIDENCE.        See 
TRIAL  COURTS. 

INVOLUNTARY  MANSLAUGHTER.     See  MANSLAUGHTER. 
IRRELEVANT  EVIDENCE.     See  EVIDENCE. 


xx  INDEX— PART  I. 

IRRELEVANT  INSTRUCTIONS. 

Correct  abstract  propositions  of  law,  11. 

Definition  of,  10. 

Directing  inquiries  as  to  facts  not  material,  11. 

Failure  to  refer  to  the  evidence,  11. 

Misleading  instructions,  10. 

Not  adapted  to  nor  based  upon  the  evidence,  11. 

Not  applicable  to  the  evidence,  10. 

Not  Justified  by  the  evidence,  10. 

Who  to  determine  as  to  relevancy  of,  10. 

IRRELEVANT  ISSUES. 

Instructions  confusing  and  misleading  the  jury,  25. 

ISOLATED  PORTIONS  OP  EVIDENCE. 
Giving  undue  prominence  to,  47. 


J. 


JUDGMENTS  OF  TRIAL-COURTS. 

How  regarded  by  appellate  courts,  73. 
When  the  verdict  is  plainly  right,  73. 

JURIDICAL  TRUTH. 

Distinction  between  juridical  and  moral  truth,  11. 
Failure  of  instruction  to  refer  to  evidence,  11. 

JURORS— AFFIDAVITS  OF. 

As  to  understanding  instructions,  33. 

JURIES. 

Disregarding  testimony  of  witnesses,  39. 
Duties  as  to  obeying  instructions,  33. 

Erroneous  instruction,  33. 

Law  applicable  to  facts,  33. 

Necessity  for  following  instructions,  33. 

Province  of  courts  as  to,  39. 

Province  of  juries  as  to,  39. 

Weight  of  evidence,  40. 


LANGUAGE. 

Right  of  party  to  have  instruction  given  in  his  own,  8. 
Qualifications  as  to,  8. 


INDEX— PART  I.  xxi 

LAW. 

Applicable  to  different  thories,  46. 

Applicable  to  the  evidence — Propositions  at  variance  with,  22. 

Applicable  to  facts,  33,  41,  57. 

Duty  of  courts  to  instruct  as  to,  7. 

Instructions  not  fully  stating  the  law,  24. 

Mixed  questions  of  law  and  fact,  51. 

Propositions  of  law  at  variance  with  the  evidence,  22. 

Questions  of  for  courts  only,  18. 

Quoted  from  text  books  prohibited,  20. 

Reading  law  to  juries  prohibited,   1. 

Separating  law  from  facts,  18. 

Submitting  questions  of  law  to  juries  prohibited,  15. 

LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS,  1-53. 

LEGAL  PROPOSITION. 

Inconsistent  legal  propositions  not  presented  by  evidence,  23. 

LOST  INSTRUCTIONS. 

Instructions  not  appearing  in  the  record — Presumptions  as 
to,  36. 

M. 

MALICE. 

Courts  not  permitted  to  pass  upon  facts  constituting,  52. 

Existence  of,  49. 

Right  of  courts  to  define  malice,  51. 

When  question  of  fact  for  jury,  52. 

MANSLAUGHTER. 

Failure  of  evidence  to  establish,  53. 

Jury  to  pass  upon  question  of  fact  as  to,  53. 

Whether  voluntary  manslaughter  or  homicide,  53. 

MATERIAL  ALLEGATION. 

A  question  of  law  for  the  court,  18. 

MATERIAL  EVIDENCE.     See  EVIDENCE. 

: 

MATERIAL  FACTS.     See  also  FACTS. 
Doubtful  material  facts,  41,  45. 
Ignoring  material  facts,  41. 
Ignoring  other  facts  proven,  42. 
Omission  of,  21. 


INDEX—  PART  I. 


MATERIAL  WITNESSES. 

Failure  of  party  to  examine,  61. 

MEANING  OF  INSTRUCTIONS. 

Doubt  as  to  meaning  intended,  22. 

MEMORANDA. 

Effect  of  made  on  record  of  trial-court,  69. 

MISINSTRUCTING  THE  JURY. 
Facts  shown  in  the  record,  35. 

MISLEADING   INSTRUCTIONS.     See  CONFUSING  AND  MISLEAD- 
ING INSTRUCTIONS. 

MIXED  QUESTIONS  OF  LAW  AND  FACT.     See  FACTS. 

MODIFICATION  OF  INSTRUCTIONS. 
Erroneous  modification,  13. 
Exceptions  to  erroneous  modification  of  proper  instructions  — 

Right  of  party  affected  to  benefit  of,  13. 
Explaining  the  meaning  of  instructions,  14. 
Failure  to  modify  instructions,  14. 

Harmless  modifications  of  proper  instructions,  15. 
Instructions  correctly  propounding  the  law,  13. 
Instructions  properly  drawn  and  requested,  13. 
Modification  of  improper  isnrtuctions  —  Giving  other  instruc- 

tion, 14. 

Proper  instructions  nullified  by  improper  instructions,  13. 
Proper  instructions  —  Harmless  modification  of,  15. 
Right  of  party  to  benefit  of  exceptions  to,  13. 

"MORAL  CERTAINTY",  53. 

(  See  Note  in  Table  of  Cases,  under  "State  v.  Sheppard." 

MURDER. 

Whether  In  first  or  second  degree,  a  question  for  the  jury,  53. 

N. 

NAMING  WITNESSES. 

Naming  witnesses  whose  testimony  is  applicable,  38. 
When  testimony  proper  in  other  respects,  39. 

NECESSITY  OF  INSTRUCTIONS. 

Reading  decisions  of  appellate  court  giving  evidence  or  facts 
involved  in  similar  cases  prohibited,  1. 


INDEX— PART  I.  xxiii 

NECESSITY  OF   INSTRUCTIONS— Continued. 
Reading  law  to  juries  prohibited,  1. 

Reading  opinion  of  appellate  court  commenting  on  evidence 
given  at  a  former  trial  prohibited,  1. 
Text  books  and  reports  to  juries  prohibited,  1. 

NEWLY-DISCOVERED  EVIDENCE. 

After-discovered  evidence — Effect  of  failure  to  certify,  67. 
Impeachment  of  witness — When  new  evidence  is  object  of,  75. 
Presumptions  as  to — What  necessary  to  show,  75. 
What  must  appear  from  affidavit  of  party  seeking  new  trial,75. 

NOTING  AND   CERTIFYING  BILLS  OF  EXCEPTIONS— TIME 

FOR. 
Certification  of  bills  of  exception  to  clerk — Duty  of  clerk  to 

record,  61. 

Necessity  for  properly  certifying  bills  of  exception,  62. 
Signing  bills  of  exception — When  must  be  signed,  61. 
When  bills  of  exception  may  be  made,  60. 
When  may  be  tendered,  61. 
When  must  be  made,  61. 

When  must  be  noted,  certified  and  recorded,  62. 
When  objection  to  instruction  must  be  offered,  60. 

NULLIFYING  INSTRUCTIONS. 

Proper  instructions  nullified  by  improper  instructions,  13. 

NUMEROUS   INSTRUCTIONS— REPEATING   INSTRUCTIONS. 
Clearly  laying  down  the  law,  29. 
Correcting  a  faulty  instruction,  28. 
Enquiry  as  to  a  particular  matter,  29. 
Phases  of  case  not  presented  in  other  instructions,  29. 
Refusal  of  instructions  when  others  given  on  same  point,  28. 
Repeating  instructions,  28. 
To  same  legal  effect  as  others  given,  28. 

O. 

OBJECT  OF  INSTRUCTION. 

How  to  be  interpreted  and  judged  of,  2,  3. 

OBJECTION  TO  ADMISSION  OF  EVIDENCE. 
How  made  available  in  appellate  court,  64. 

OBJECTION  TO  INSTRUCTION. 
When  objection  may  be  made,  60. 
When  objection  must  be  made,  61. 


INDEX—  PART  I. 


OBJECTION  TO  INSTRUCTION—  Continued. 
When  objection  must  be  offered,  60. 

OBSCURE  INSTRUCTIONS.    See  VAGUE  or  OBSCUBE  LNSTBUCTION. 
Offense  —  Degrees  of  —  Failure  to  instruct,  53. 
Whether  murder  in  first  or  second  degree,  53. 
Whether  voluntary  manslaughter  or  homicide,  5;?. 

OFFERING  INSTRUCTION—  TIME  FOR. 
Abuse  of  discretion  by  trial-courts,  6,  7. 
Rules  of  trial-courts  as  to,  6. 

OFFICE  OF  BILLS  OF  EXCEPTION. 
What  exceptor  must  show,  56. 

OFFICE  OF  INSTRUCTIONS. 

How  interpreted  and  judged  of,  2,  3. 

OMISSION  OF  MATERIAL  FACTS. 
Effect  of  upon  the  verdict,  21. 
Omission  of  reference  to  facts,  21. 

ORAL  INSTRUCTIONS. 

Refusal  of  correct  written  instructions,  30. 

'  ORDER  AND  ORDER  BOOK  OF  TRIAL-COURT. 
What  it  must  show,  69. 

ORDER  FILING  BILLS  OF  EXCEPTION. 
Necessity  for,  68. 
Rule  of  appellate  court  as  to,  68. 

P. 

PAPERS  FOUND  AMONG  THE  RECORD. 
How  considered,  68,  70. 
Identification  of,  70. 
Reference  to,  70. 

PARAGRAPHS  FROM  BOOKS. 

Instructions  containing  prohibited,  24. 

PERTINENT  INSTRUCTIONS. 

Instructions  given  in  one's  own  language,  8 

PLEADINGS. 

Copy  of  paper  attached  to,  70. 


INDEX— PART  I.  XXY 

PREPONDERANCE  OF  EVIDENCE.     See  WEIGHT  AND  PREPON- 
DERANCE OF  EVIDENCE. 

PROBABLE  CAUSE. 

Proceedings    of   trial-court — Presumptions    as    to    regularity 

of,  59. 
Mixed  questions  of  law  and  fact — Province  of  courts  as  to,  51. 

PROOF— BURDEN  OF. 

Verdict  based  on  mere  conjecture,  73. 

PROPER  INSTRUCTIONS— MODIFICATION,  NULLIFICATION 

AND  REFUSAL  OF. 
Effect  of  refusal  on  the  verdict,  29. 
Giving  other  instruction  to  same  effect,  30. 
Instructions  presenting  defense,  31. 
Modification  of — Erroneous  modification  of,  13. 
Nullification  by  improper  instruction,  13. 
Oral  instructions — Refusal  of  correct  written  instructions,  30. 

PUNISHMENT— DEGREES  OF. 
Failure  to  establish,  53. 

PURPOSE   OF  EXCEPTIONS.     See  also  REQUISITES  OF  EXCEP- 
TIONS. 
Office  of  bills  of  exception — What  exceptor  must  show,  56. 

PURPOSE  OF  INSTRUCTIONS. 
Office  of  instructions,  2. 


QUESTIONS  OF  FACT. 

Doubtful  material  facts — Courts  prohibited  from  instructing 
as  to,  41,  49. 

Jury  to  determine  as  to,  18. 

Weight  of  evidence — Courts  prohibited  from  instructing  as 
to,  41,  44. 

QUESTIONS  OF  LAW. 

Duty  of  trial-court  when  the  law  is  plainly  for  one  party,  15. 
Submitting  questions  of  law  to  juries  prohibited,  15. 

R. 

READING  INSTRUCTIONS— HOW  TO  BE  TAKEN  AND  READ. 
Author  of  instructions — 'Who  regarded  as,  9. 


INDEX—  PART  I. 


READING  INSTRUCTIONS—  HOW  TO  BE  TAKEN  AND  READ 

—  Continued. 
Construing    Instructions  —  How    construed  —  Stating    the    law 

correctly,  9. 
What  necessary  to  insert  in,  9. 

READING  LAW  TO  JURIES. 
Prohibition  of,  1. 

REASONABLE  DOUBT. 

"Beyond  a  reasonable  doubt"  and  "to  a  moral  certainty", 
equivalent  terms,  see  "Table  of  Cases"  under  "State  v. 
Sheppard". 

RECORD  AND  RECORD  BOOK  OF  TRIAL-COURTS.     See  also 

BILLS  OF  EXCEPTION. 

After  discovered  evidence  —  Effect  of  failure  to  certify,  67. 
Alteration  of,  71. 

Error  appearing  on  face  of  —  Statute  concerning  denned,  55. 
Identification  of  papers  not  incorporated   in  bills  of  excep- 

tion, 71. 

Identification  of  papers  referred  to  in  bills  of  exception,  71. 
Inserting  matter  not  part  of  record,  71. 
Instructions  copied  into,  70. 
Memoranda  on  —  Effect  of,  69. 
Necessity  for  certifying  sufficient  evidence  to  show  relevancy 

of  Instructions,  57,  58. 

Order  of  trial-court  —  What  record  must  show,  69. 
Papers  —  Copies  of  attached  to,  70. 
Presumption  as  to  regularity  of  proceedings  of  trial-courts, 

59. 

Purporting  to  be  part  of  bills  of  exception,  70. 
Reference  to  that  may  be  safely  copied  into,  70. 
Restoration  of  record  —  How  record  may  be  restored,  71. 
Statute  concerning  "error  appearing  on  face  of  record"  de- 

fined, 70. 

What  necessary  to  make  part  of  record,  68. 
What  it  must  show  as  to  bills  of  exception,  56,  59. 
What  the  record  must  show  in  general,  67,  69. 

RECORDING  BFLLS  OF  EXCEPTION. 
Duty  of  clerks  as  to,  61. 
Making  part  of  record,  61. 
Time  for,  60. 

REFUSAL  OF  INSTRUCTIONS. 

When  others  given  on  same  point,  28. 


INDEX— PART  I.  xxvil 

REFUSAL  OF  PROPER  INSTRUCTIONS. 
Effect  of  refusal  on  the  verdict,  29. 
Giving  others  to  same  effect,  30. 
Oral  instructions,  30. 
Refusal  of  correct  written  instructions,  30. 

RELEVANCY  OF  EVIDENCE. 

Necessity  for  relevancy  of  evidence  excluded,  67. 

RELEVANCY  OF  INSTRUCTIONS. 

Correct  abstract  propositions  of  law,  11. 

Definition  of,  10. 

Directing  enquiries  as  to  fact  not  material,  11. 

Failure  to  refer  to  the  evidence,  11. 

Misleading  instructions,  10. 

Necessity  for  certifying  sufficient  evidence  to  show  relevancy 

of,  67. 

Not  adapted  to  nor  based  upon  the  evidence,  11. 
Not  applicable  to  the  evidence,  10. 
Not  justified  by  the  evidence,  10. 
Relevant  instructions  defined,  10. 
Who  to  determine  as  to  relevancy  of,  10. 

REPEATING  INSTRUCTIONS.     See  NUMEBOUS  INSTRUCTIONS. 

REQUISITES   OF  EXCEPTIONS   AND   BILL  OF   EXCEPTION. 

See  also  BILLS  OF  EXCEPTION. 

Bills  of  exception  and  record — What  they  must  show,  56. 
How  they  must  present  the  case,  57. 
Office  of — What  exceptor  must  show,  56. 

Certifying  sufficient  evidence  to  show  relevancy  of  instruc- 
tions— Necessity  for,  57,  58. 
Exceptions  raised  in  another  bill  of  exceptions,  58. 

To  part  of  instructions  only,  58. 

Failure  to  set  forth  sufficient  matter  to  show  whether  instruc- 
tions are  correct,  58. 

Offer  of  bills  of  exception — What  exception  must  show,  56. 
Saving  points — What  necessary,  59. 
Setting  out  sufficient  grounds — Insufficient  grounds,  58. 
Trial  courts — Presumptions  as  to  regularity  of  proceedings 

of,  59. 
Waiving  points — When  regarded  as  waived,  59. 

REPORTS. 

Reading  from  to  juries  prohibited,  2. 

Stenographic — How  made  a  part  of  the  record,  65,  66. 


INDEX—  PART  I. 


RULES  OF  TRIAL  COURTS. 

As  to  time  of  giving  instructions,  6. 
Discretion  of  as  to,  6. 

RULE  REQUIRING  TRIAL  COURT  TO  SIGN   BILLS  OF  EX- 

CEPTION. 
Effect  of  answer  to  rule,  65. 


S. 


SAVING  POINTS. 

What  necessary,  59. 

SCRUTINIZING  EVIDENCE. 
Duty  of  jury  as  to,  47. 

• 

SELF  DEFENSE. 

Charter  of  assault — When  trespass  only  intended,  52. 

SETTING  ASIDE  THE  VERDICT,  72-76. 
Based  on  mere  conjecture,  73. 
Burden  of  proof,  73. 

Conflicting  evidence — Weight  of  evidence,  74. 
Harmless  error,  76. 

How  verdict  regarded  by  appellate  court,  73. 
Illegal  evidence — Presumption  as  to,  75. 
Insufficient  evidence,  75. 
Irrelevant  evidence,  74. 
Mere  conjecture — Verdict  based  on,  73. 
Motion  for — Necessity  of,  72. 
Newly  discovered  evidence — Presumption  as  to,  75,  76. 

Character  of  and  materiality  of,  75. 

What  must  appear  from  affidavit  for,  75. 
Not  supported  by  evidence,  73. 
Preponderance  of  evidence,  73. 
Presumption  as  to  Illegal  evidence,  75. 

As  to  newly  discovered  evidence,  75. 
Waiving  exceptions,  72. 
Waiving  errors,  72. 

Weighing  the  evidence  by  the  appellate  court,  74. 
Weight  of  evidence,  74. 
When  the  judgment  Is  plainly  right,  73. 

SIGNATURE  OF  TRIAL  JUDGE  TO  BILLS  OF  EXCEPTION. 
Authority  of  special  judge  to  sign,  62. 
Necessity  for,  62. 
Want  of  signature  of  trial  judge,  62. 


INDEX— PART  I.  xxix 

SIGNATURE  OF  TRIAL  JUDGE  TO  BILLS  OF  EXCEPTION— 

Continued. 
When  must  be  signed,  61. 

SILENT  RECORD. 

As  to  degrees  of  punishment,  5. 

SINGLING  OUT  FACTS.     See  FACTS. 

SINGLING  OUT  WITNESSES. 

Naming  witness  whose  testimony  is  applicable,  38. 
When  instruction  proper  in  other  respect,  39. 

SKELETON  BILLS  OF  EXCEPTION. 

Time  within  which  to  certify  and  identify  such  evidence,  66. 
When  may  be  adopted  for  purpose  of  making  evidence  part 
of  the  record,  66. 

SOUND  LEGAL  PROPOSITIONS. 

Colorable  evidence — Slight  evidence,  46. 

SPECIAL  JUDGE. 

Authority  to  sign  bills  of  exception,  62. 

SPECIFYING  WEIGHT  OF  EVIDENCE. 
Value  of  testimony,  45. 

SPECIFIC  INSTRUCTION. 

Necessity  for  asking  and  giving,  26. 

STATUTE  DEFINED. 

Concerning  error  appearing  on  the  record,  55. 

STENOGRAPHIC  REPORTS. 

How  made  part  of  the  record,  65. 

Necssity  for  distinct  specifications  as  to,  66. 

SUBMITTING  QUESTIONS  OF  LAW  ONLY. 

Duty  of  trial  court  when  law  is  plainly  for  one  party,  15. 
Submitting  questions  of  law  to  juries  prohibited,  15. 

SUPPOSITIVE  INSTRUCTIONS. 

Evidence  tending  to  prove  case  supposed,  27. 
Weak  evidence,  27. 

SWEARING  WITNESSES— MISTAKE  IN  NOT  SWEARING. 
After  verdict  is  renderd,  38. 
Before  the  jury  retires,  38. 


xxx  INDEX— PART  I. 

T. 

TEXT  BOOKS  AND  REPORTS. 
Reading  to  juries  prohibited,  2. 

TENDERING  BILLS  OF  EXCEPTION. 
Time  for,  60. 

THEORIES. 

Law  applicable  to  different,  46. 

TIME  FOR; 

Certifying  bills  of  exception,  60. 

Excepting  to  instructions.  59. 

Making  exceptions,  60. 

Noting  exceptions,  60. 

Objecting  to  instructions,  60. 

Offering  exceptions  to  instructions,  60. 

Recording  exceptions  and  bills  of  exception,  61,  62. 

Signing  bills   of  exception.   60.   61. 

Tendering  exceptions,  60,  61. 

TRIAL  COURTS. 

Abuse  of  discretion  by,  7. 

Answer  to  rules  requiring  the  signature  to  bills  of  exception 

— Effect  of,  65. 

Compelling  trial  courts  to  sign  bills  of  exception,  65. 
Discretion  as  to  examination  of  witnesses,  51. 
Discussion  of  evidence,  49. 
Discussion  of  credibility  of  witnesses,  49. 

Weight  of  evidence,  49. 
Disregarding  testimony  of  witnesses,  39. 

Province  of  court  as  to,  39. 

Province  of  jury  as  to,  39. 

Weight  of  evidence,  39. 

Errors  committed  by — Certifying  evidence,  57. 
Influencing  the  jury,  49. 
Intimation  of  opinion  as  to  facts,  48. 

Assuming  certain  things  as  facts,  49. 

As  to  guilt  of  accused,  50. 

Weight  of  evidence,  49. 
Malice  not  a  question  for  court  to  pass  upon,  52. 

Right  of  court  to  define,  51. 

Offering  Instruction — Discretion  as  to  time  for,  6. 
Order  book,  and  record  of — What  they  must  show,  67,  69. 
Proceedings  of — Presumptions  as  to  regularity  of,  59. 
Record  of— What  It  must  show,  69. 


INDEX— PART  I.  .  xxxi 

TRIAL  COURTS— Continued. 

Regularity  of  proceedings  of — Presumption  as  to,  59. 
Requirements  to  sign  and  certify  proper  bills  of  exceptions, 

65. 

Rules  of — Reasonable  rules,  6. 
Rule  requiring  signature  to  bills  of  exception,  65. 
Signature  of  to  bills  of  exception — How  compelled,  65. 

Necessity  for,  62. 

What  petition  must  set  forth,  65. 
Witnesses — Competency  of — Who  to  determine,  37. 
Weight  of  evidence — Discussion  of  prohibited,  49. 

U. 

UNAMBIGUOUS  INSTRUCTIONS. 

Concerning  right  of  party  to  have  instructions  given  in  his 
own  language,  8. 

UNCONTRADICTED  EVIDENCE. 

Facts  submitted  or  sustained  by  the  evidence,  17. 

UNCONTRADICTED  FACTS. 

Correct  assumption  of  facts,  16. 

UNCORROBORATED  EVIDENCE. 

Accomplices — Testimony  of — Action  of  appellate  court  as  to, 
47. 

Prohibiting  instructions  as  to  weight  of,  47. 
Duty  of  jury  to  scrutinize,  47. 

UNDERSTANDING  INSTRUCTIONS. 
Affidavits  of  jurors  as  to,  33. 

UNINTELLIGIBLE  INSTRUCTIONS. 

Instructions    confused    in    language    and    contradictory    in 
terms,  23. 

V. 

VAGUE  OR  OBSCURE  INSTRUCTIONS. 
Doubt  as  to  meaning  intended,  22, 
Inconsistent  legal  proposition,  23. 
Instructions  ussceptible  of  two  constructions,  22. 
Propositions  at  variance  with  the  law  applicable  to  the  evi- 
dence, 22. 

Qualifications  as  to,  8. 
Rule  of  appellate  court  as  to,  22. 


INDEX— PART  I. 

VERDICT — SETTING  ASIDE.     See  SETTING  ASIDE  THE  VERDICT. 

VICTIM— CHARACTER  OF. 

Admisstbility  of  evidence  as  to,  62. 
In  connection  with  other  evidence,  52. 

W. 

WAIVER  OF  ERRORS. 

When  regarded  as  waived,  72. 

WAIVING  EXCEPTIONS  TO  INSTRUCTION. 
What  notice  exceptor  required  to  give,  54. 
When  deemed  as  waived,  72. 

WAIVING  INSTRUCTIONS. 

When  presumed  to  be  waived,  6. 

WAIVING  POINTS. 

When  regarded  as  waived,  59. 

WEAK  EVIDENCE. 

Evidence  tending  to  prove  the  case,  27. 

WEIGHING  EVIDENCE. 

How  weighing  evidence  by  appellate  court  regarded,  74. 

WEIGHT  OF  EVIDENCE.     See  EVIDENCE. 

WIFE. 

Effect  of  failure  to  testify  for  husband,  50. 

When  not  competent  witness  against  husband,  37. 

WITNESSES. 

Arbitrary  disregard  of  testimony  of,  39. 
Classification  of,  38. 
Competency  of  in  general,  36,  37. 
Credibility  of,  49. 

Court  to  judge  as  to  competency  of,  36. 
Disregarding  testimony  of,  39. 
Province  of  court  as  to,  39. 

Of  jury  as  to,  39. 
Weight  of  evidence,  40. 

Felony — When  one  convicted  of  may  be  competent  witness,  37. 
Impeachment  of — Arbitrary  disregard  of  testimony  of,  39. 
Material  witnesses — Effect  of  failure  to  examine,  50. 
Mistake  in  not  swearing  witness,  37,  38. 


INDEX— PART  I.  xxxiii 


Discovery  of  mistake  after  verdict  rendered,  38. 

Before  jury  retires,  38. 
Naming  witness  whose  testimony  is  applicable,  38. 

When  instructions  proper  in  other  respects,  39. 
Singling  out  witnesses — Opportunities  for  witnesses  to  know 

the  truth,  38. 

Weight  to  be  given  to  testimony  of,  49,  50. 
Who  to  judge  as  to  competency  of,  36. 

Wife  not  a  competent  witness  against  her  husband — When, 
37. 


TABLE  OF  CASES-PART  I. 


GIVING    THE    WEST    VIRGINIA    AND    VIRGINIA    CITATIONS    IN    SUPPORT    OF 
EACH  LEGAL  PROPOSITION   LAID  DOWN. 


The  subjects  printed  in  italics  correspond  to  the  sub-headings, 
pages  and  letters  of  the  text. 

Sub-headings,  under  which  there  are  neither  W.  Va.  nor  Va. 
citations  in  support  of  the  text  therein  contained,  are  omitted. 

THE  TABLE  OF  CASES  IN  PART  II,  FOLLOWS  THAT  SUBJECT. 
A. 

ADKINS  v.  INSURANCE  CO.,  45  W.  VA.  384. 

62,a.  Necessity  of  signature  of  trial-judge  to  bills  of  exception, 

W.  Va.;   State  v.  Hall,  8-259. 
69,d.  What  order  book  and  record  of  trial-court  must  show. 

W.  Va.;  Bank  v.  Showacre,  26-49. 

ARTHUR  v.  CITY  OF  CHARLESTON,  51  W.  VA.  132. 

30,b.  Refusal  of  proper  instructions — Giving  others  to  same  legal 

effect. 

W.  Va.;  McCray  v.  Fairmont,  46-442;  Plate  v.  Durst,  42-69; 
Shrewsbury  v.  Tufts,  41-213. 


BANK  v.  NAPIER,  41  W.  VA.  481. 

BARNETT  v.  LUMBER  CO.,  43  W.  VA.  441. 

25,c.  Contradictory  instructions — Reversal  because  of. 

W.  Va.;  Hall  v.  Lyons,  29-420;  Mason  v.  Bridge  Co.,  20-223; 


xxxvi  TABLE  OF  CASES— PART  I. 

BARNETT  v.  LUMBER  CO.,  43  W.  VA.  441— Continued. 
McCreery  v.  R.   R.  Co.,  43-110;    McElvey  v.  R.  R. 
Co.,     35-500;     McMechen     v.     McMechen,     17-703; 
Woodell  v.  Improvement  Co.,  38-23. 

BENTLEY  v.  INSURANCE  CO.,  40  W.  VA.  730. 

17,h.  Assumption  of  facts — Facts  not  proven — Weight  of  evidence. 
W.  Va.;  Bank  v.  Als,  5-50;  Kerr  v.  Lunsford,  31-660. 

BLACK  v.  THOMAS,  21  W.  VA.  712. 

57,c.  How  bills  of  exceptions  must  present  the  case. 
W.  Va.;  Newlin  v.  Beard,  6-110. 
Va.;  Read's  case,  22  Gratt.  924. 

BRIDGE  CO.  v.  BRIDGE  CO.,  34  W.  VA.  155. 

BROWN  v.  BROWN,  29  W.  VA.  777. 

72,b.  Waiving  exceptions  to  instructions. 

W.  Va.;  Danks  v.  Rodeheaver,  26-274;   Kemble  v.  Herndon, 
28-524;  Riddle  v.  Core,  21-530;  Sammons  v.  Hawver, 
25-678;     Shrewsbury    v.    Miller,    10-115;     State    v. 
Phares,  24-657;   State  v.  Thompson,  26-145. 
Va;  Humphreys  v.  West,  3  Rand.  516. 


C. 


CAMPBELL  v.  HUGHES,  12  W.  VA.  184. 

10,e.  Instructions  not  applicable  to  the  evidence. 

Va.;  Fitzhugh  v.  Fitzhugh,  11  Gratt.  300;   Kincheloe  v. 
Tracewell,  11  Gratt.  587. 

CAPELLAR  v.  INSURANCE  CO.,  21  W.  VA.  577. 

40,b.  Facts  constituting  defense. 

W.  Va.;  Abell   v.   Ins.   Co.,   18-412;    Cohen  v.   Guthrie,   15- 

113;  Smith  v.  Townsend,  21-468. 
Va.;  Chatham  v.  Hatcher,  30  Gratt.  56. 

CARDER  v.  BANK,  34  W.  VA.  68. 

60,a.  When  objection  to  instructions  must  be  offered. 

W.  Va.;  Core  v.  Marple,  24-354;    Danks  v.  Rodeheaver,  26- 
274;  Wustland  v.  Potterfleld,  9-438. 


TABLE  OF  CASES— PART  I.  xxxvli 

CARPER  v.  COOK,  39  W.  VA.  346. 

62,b.  Authority  for  special  Judge  to  sign  bills  of  exception. 
W.  Va.;  Code,  Ch.  112,  Sec.  12  and  Chap.  131.,  Sec.  9. 

CARRICO  V.  RAILWAY  CO.,  35  W.  VA.  89. 

14,g.  Explaining  the  meaning  of  instructions. 
W.  Va.;  Gas  Co.  v.  Wheeling,  8-371.      . 

Va.;  R.  R.  Co.  v.  Polly,  14  Gratt.  447;  Ward  v.  Churn, 
18  Gratt.  801. 

CARRICO  v.  RAILWAY  CO.,  39  W.  VA.  86. 

16,c.  Assumption  of  facts — Facts  proven  beyond  controversy. 

W.  Va.;   Carrico   v.   Railway   Co.,    35-390;    Sheff   v.    City   of 

Huntington,  16-307. 

Va.:  Railroad  Co.  v.  Noell's  Admr.,  32  Gratt.  394. 
34,c.  Harmless  instructions — Necessity  for  apparent  harmlessness. 
W.  Va.;  Beatty  v.  R.  R.  Co.,  6-388;  Clay  v.  Robinson,  7-348. 

Va.;  Bank  v.  Wadill,  27  Gratt.  448. 
27,b.  Suppositive  instructions — Weak  evidence. 

W.  Va.;  Bloyd  v.  Pollocks,  27-75;  Bridge  Co.  v.  Bridge  Co., 

34-155. 
Va.;  Hopkins  v.  Richardson,  9  Gratt.  485. 

CLAIBORNE  v.  RAILWAY  CO.,  46  W.  VA.  363. 

20,a.  Misleading  instructions. 

W.  Va.;   Sheppard  v.  Insurance  Co.,  21-368.     ,  ,       , 

Va.;  Pasley  v.  English,  10  Gratt.  236. 
42,d.  Singling  out  facts — Ignoring  other  material  facts. 

COFFMAN  v.  HEDRICK,  32  W.  VA.  120. 

16,a.  Instructions  must  be  based  on  facts  proven. 
Va.;  Cheatham  v.  Hatcher,  30  Gratt.  56. 

CORDER  v.  TALBOTT,  14  W.  VA.  284. 

35,f.  Misinstructing  the  jury — Facts  shown  in  the  record. 
W.  Va.;  Clay  v.  Robinson,  7-350. 

Va.;  Colvin  v.  Menefee,  11  Gratt.  87;  Insurance  Co.  v. 
Herndon,  24  Gratt.  536;  Pitman  v.  Breckenridge,  3 
Gratt.  127. 

CRAFT  v.  MANN,  46  W.  VA.  478. 

61,f.  Certification  of  bills  of  exception  to  clerk — Duty  of  clerk  to 

record. 
W.  Va.;   Griffith  v.  Carrothers,  42-59. 


xxxviii  TABLE  OF  CASES— PART  I. 

CROGAN  v.  R.  R.  CO..  39  W.  VA.  415. 
74,j.  Conflicting  evidence — Weight  of  evidence. 

W.  Va.;  Martin  v.  Thayer,  37-38;   Miller  v.  Insurance  Co., 

12-116;    Reynolds    v.    Tompkins,    229. 
Va.;  Grayson's  case,  6  Gratt.  712. 

CUMMINGS  v.  ARMSTRONG,  34  W.  VA.  1. 

65,f.  Compelling  trial-courts  to  sign  bills  of  exception — Effect  of 
answer  to  rule — Requirements  to  sign  and  certify  proper 
bills. 

W.  Va.;  Douglass  v.  Loomis,  5-542;  Morgan  v.  Fleming,  24- 
189;  Poteet  v.  Commissioners,  30-58. 


D. 


DANKS  v.  RODEHEAVER,  26  W.  VA.  274. 

56,b.  What  bill  of  exceptions  and  record  must  show. 

'W.  Va.;  Core  v.  Marple,  24-354;   State  v.  Phares,  24-657. 

DAVIDSON  v.  RAILWAY  CO.,  41  W.  VA.  408. 

DAVIS  v.  WEBB,  46  W.  VA.  6. 

7,a.  Duty  of  courts  to  instruct  as  to  the  law  when  asked  to  do  so. 
35,e.  Harmless  instructions — When  a  different  verdict  -could  not 

have  been  rightly  found. 
W.  Va.;  Nicholas  v.  Kershner,  20-251. 

Va.;   Bank   v.   Wadill,   27   Gratt.   451;    Wiley  v.   Givens, 
6  Gratt.  277. 

DICKEN  v.  SALT  CO.,  41  W.  VA.  512. 

DIMMEY  v.  RAILROAD  CO.,  27  W.  VA.  52. 

54,a.  Necessity  for  exceptions — What  notice  exceptor  required  to 

give. 

W.  Va.;  Core  v.  Marple,  24-354;  Danks  v.  Rodeheaver,  26- 
274;  State  v.  Phares,  24-657;  State  v.  Thompson, 
26-149. 

59,k.  Waiving  point — When  regarded  as  waived. 
W.  Va. ;   Same  rases  as  last  above. 

DINGESS  v.  BRANSON.  14  W.  VA.  100. 

20,c.  Asserting  erroneous  propositions. 
W.  Va.;   Strader  v.  Goff,  6-257. 


TABLE  OF  CASES— PART  I.  xxxix 

F. 
FISHER  v.  RAILROAD  CO.,  42  W.  VA.  183. 

FOLEY  v.  CITY  OF  HUNTINGTON,  51  W.  VA.  396. 

46,c  Conflicting    evidence  —  Facts    Supposed  —  Preponderance  of 

evidence. 

W.  Va.;  Bowen  v.  City  of  Huntington,  35-382;  Moore  v. 
City  of  Huntington,  31-824;  Phillips  v.  City  of 
Huntington,  35-406. 

FURBEE  v.  SHAY,  46  W.  VA.  736. 

62, g.  Necessity  for  properly  certifying  bills  of  exception  and  mak- 
ing part  of  the  record. 

W.  Va.;  Craft  v.  Mann,  46-478;  Griffith  v.  Carrothers,  42- 
59. 

G. 

GAS  CO.  v.  WHEELING,  8  W.  VA.  323. 

22,b.  Instructions  susceptible  of  two  constructions. 

Va.;  Railroad  Co.  v.  Sanger,  15  Gratt.  230;   Boswell's  case, 

20  Gratt.  860. 

14,e.  Modification    of    improper    instructions — Giving    other    in- 
structions. 

GILMER  v.  SYDENSTRICKER,  42  W.  VA.  52. 

60,b.  Opinions  of  trial-court — When  exceptions  to  be  made  to. 
W.  Va.;  Core  v.  Marple,   24-354;    Nadenbusch  v.   Sharer,  2- 
285;  Perry  v.  Horn,  22-381;   Robinson  v.  Pitzer,  3- 
335;   Wickes  v.  R.  R.  Co.,  14-157. 
Va.:  Telegraph   Co.   v.   Hobson,   15   Gratt.   122. 

GUNN  v.  R.  R.  CO.,  37  W.  VA.  420. 

70,i.  Reference   to   papers   that  may   be   safely  copied   into   the 

record. 
W.  Va.;  Gunn  v.  R.  R.  Co.,  36-165;  Richardson  v.  Donahoo, 

16-687. 
Va. ;  Craig  v.  Sebrell,  9  Gratt.  431. 

H. 

HALSTEAD  v.  HORTON,  38  W.  VA.  727. 

75,m.  Newly   discovered   evidence — When  new   trial  granted  on 

ground  of. 
W.  Va.;  Carder   v.    Bank,    34-38;    State   v.    Betsall,    11-703. 


xl  TABLE  OF  CASES— PART  I. 

HANNUM  v.  HILL,  52  W.  VA.  166. 
HARMON  v.  MADDY,  57  W.  VA.  66. 
HOOD  v.  MAXWELL.  1  W.  VA.  219. 

HUGHES  v.  FRUM,  41  W.  VA.  446. 
71,1.  Identification  of  papers  referred  to  in  record. 

•W.  Va.;  Hart  v.  R.  R.  Co.,  6-336;  Sweeney  v.  Baker,  13-189. 

Va.;  White  v.  Toncray,  9  Leigh.  347. 

58,e.  Identification  of  instructions  when  exceptions  to  taken. 
W.  Va.;  Gunn  v.  R.  R.  Co.,  37-421. 


FLSLEY  v.  WILSON,  42  W.  VA.  758. 

INDUSTRIAL  CO.  v.  SHULTZ.  43  W.  VA.  471. 

23,e.  Vague    or   obscure  instructions — Inconsistent    legal    propo- 
sitions. 

W.  Va.;   Barnett  v.  Lumber  Co.,  43-441;   Gas  Co.  v.  Wheel- 
ing, 8-323;  McMechen  v.  McMechen,  17-703. 


J. 


JARRETT  v.  STEVENS,  36  W.  VA.  446. 

7,1.  Time  for  offering  instructions — Abuse  of  discretion  of  trial- 
court. 
W.  Va.;  Tully  v.  Despard,  31-970. 

JORDAN  v.  BENWOOD.  42  W.  VA.  312. 

36,a.  Lost  instructions — Presumption  as  to. 

Va.;  Turberville  v.   Long,   3   Hen.   &  Mun.,   309. 
8,c.  Right  of  party  to  have  instructions  given  in  his  own  lan- 
guage— Qualifications  as  to. 

W.  Va.;   State  v.  Evans,  33-417. 

JORDAN  v.  JORDAN,  48  W.  VA.  600. 

61,e.  Time  within  which  bills  of  exceptions  must  be  signed. 

W.  Va.;  Hughes  v.  Frum,  41-452;   Gilmer  v.  Sydenstricker, 
42-55;    Simmons   v.   Looney,    41-738;    State   v.   Mc- 
Glumphy,  37-805;  Welty  v.  Campbell,  37-797. 
Va.;  Winston  v.  Giles,  27  Gratt.  530. 


TABLE  OP  CASES— PART  I.  xli 

K. 

KAY  v.  R.  R.  CO.,  47  W.  VA.  467. 

66,h.  Stenographic  reports — How  made  part  of  the  record. 

W.  Va.;  Code,  page  1062;  Bank  v.  Showacre,  26-48;  Cum- 
mings  v.  Armstrong,  34-1;  Gregory  v.  R.  R.  Co., 
37-606;  Hughes  v.  Frum,  44-453;  Perry  v.  Horn, 
22-381;  Poling  v.  R.  R.  Co.,  38-645;  State  v.  Harr, 
38-58. 

Va.;  Railroad  Co.  v.  Ampey,  93-108;  R.  R.  Co.  v.  Shotts, 
92-34. 

KERR  v.  LUNSFORD,  31  W.  VA.  662. 

KING  v.  JORDAN,  46  W.  VA.  106. 

64,b.  Certifying  the  facts  and  not  the  evidence  not  prohibited, 
W.  Va.;  Johnson  v.  Burns,  39-658. 

KINSLEY  v.  COUNTY  COURT,  31  W.  VA.  464. 

KLINKLER  v.  S.  &  I.  CO.,  43  W.  VA.  219. 

58,h.  Exceptions  raised  in  another  bill  of  exceptions. 

W.  Va.;  Hall  v.  Hall,   12-21;    Zumbro  v.   Stump,  38-334. 
Va. ;   Brook  v.  Young,  3  Rand.  106;  Crawford  v.  Jarrett, 
2  Leigh.  639;   Perkins  v.  Hawkins,  9  Gratt.  649. 

KOONTZ  v.  KOONTZ,  47  W.  VA.  31. 
70,j.  Papers  purporting  to  be  a  part  of  bills  of  exceptions. 

W.  Va.;  Bank  v.  Showacre,  26-48;  Handy  v.  Scott,  26-710; 
Hilleary  v.  Thompson,  11-113;  Parker  v.  Petroleum 
Co.;  25-108;  Pegram  v.  Stortz,  31-220;  Phelps  v. 
Smith,  16-522;  Ramsburg  v.  Erb,  16-788;  Winters 
v.  Null,  31-450. 

L. 

LAIDLEY  v.  COUNTY  COURT,  44  W.  VA.  566. 
63,a.  Necessity  for  certifying  all  the  evidence. 

W.  Va.;  Johnson  v.  Burns,  39-659;  State  v.  Ziegler,  40-593; 
Yeager  v.  Bluefield,  40-484. 

LANDERS  v.  R.  R.  CO.,  46  W.  VA.  492. 

50,a.  Arguments  of  counsel — Abuse  of  privileges — Necessity  for 

instructions  as  to. 
W.  Va. ;   State  v.  Chisnell,  36-670. 


xlii  TABLE  OF  CASES— PART  I. 

LIMER  v.  TRADERS  CO..  4,  W.  VA.  175. 

74,h.  Preponderance    of  evidence — When    preponderates    against 

verdict. 

W.  Va.;  Davidson  v.  Ry.  Co.,  41-407;  Johnson  v.  Burns, 
39-659. 

LIVELY  v.  BALLARD,  2  W.  VA.,  496. 
LONG  v.  FERINE,  44  W.  VA.  243. 
M. 

MCDONALD  v.  COAL  co..  46  w.  VA.  ise. 

46,a   Colorable  evidence — Sound  legal  propositions. 

W.  Va.;  Bloyd  v.  Pollock,  27-75;  Carrico  v.  Ry.  Co.,  39-100; 
Clay  v.  Robinson,  7-349;  Industrial  Co.  v.  Schultz, 
43-471. 

McKELVEY  v.  RAILROAD  CO.,  35  W.  VA.  501. 

McKENDREE  v.  SHELTON,  51  W.  VA.  516. 

70,h.  Copy  of  paper  attached  to  pleadings — Presumptions  as  to. 
W.  Va.;  Arnold  &  Co.  v.  Slaughter,  36-589;  Chapman  v.  Mc- 
Millan, 27-220;  Gunn  v.  R.  R.  Co.,  37-424;  Ward  v. 
Ward,  40-611. 

71,k.  Identification  of  papers  not  incorporated  in  Mil  of  excep- 
tions. 
Same  citations  as  last  above. 

McMECHEN  v.  McMECHEN,  17  W.  VA.  684. 

26,a.  Evidence  tending  to  prove  certain  facts. 

Va,;  Pasley  v.  English,  10  Gratt.  242;  Rea's  Admr.  T. 
Trotter,  26  Gratt.  585. 

McVEY  v.  ST.  CLAIR  CO..  49  W.  VA.  412. 

21, c.  Instructions  which  omit  any  reference  to  facts. 
W.  Va.;  Jackson  v.  Railroad  Co.,  43-380. 

MAXWELL  v.  KENT,  49  W.  VA.  543. 

MAYER  v.  FROBE,  40  W.  VA.  248. 

68,b.  Necessity  for  order  filing  bills  of  exception. 

W.  Va.;  Overruling  Beck  v.  Thompson,  31  W.  Va.  459.,  and 
Pegram  v.  Stortz,  31-354. 


TABLE  OF  CASES— PART  I.  xliii 

MILLER  v.  WHITE,  46  W.  VA.  68. 
MOORE  v.  DOUGLASS,  14  W.  VA.  708. 

MORGAN  v.  FLEMING,  24  W.  VA.  187. 

65,e.  Compelling  trial-courts  to  sign  bills  of  exception. 

W.  Va.;  Black  v.  Thomas,  21-709;  Code,  Ch.  131,  sec.  9; 
Douglass  v.  Loomis,  5-542;  Fisher  v.  City  of 
Charleston,  17-595,  628. 

Va.;  Bennett  v.  Hardaway,  6  Munf.  125;  Brooks  v.  Cal- 
loway,  12  Leigh.  446;  Jackson  v.  Henderson,  3 
Leigh.  196;  Pasley  v.  English,  5  Gratt.  141; 
Taliaferro,  v.  Franklin,  1  Gratt.  332. 

N. 

NICHOLAS  v.  KERSHNER,  20  W.  VA.  251. 
O. 

OCHELTREE  v.  McCLUNG,  7  W.  VA.  233. 

/ 

OLIVER  v.  RAILROAD  CO.,  42  W.  VA.  703. 

21,a.  Hypothetical    instructions — Failure    of    evidence    to    estab- 
lish facts. 
W.  Va.;  Winkler  v.  R.  R.  Co.,  12-699. 

ORGAN  CO.  v.  HOUSE,  25  W.  VA.  65. 

OSBORNE  &  CO.  v.  FRANCIS,  38  W.  VA.  312. 

34,a.  Harmless  instructions — When  harmlessness  apparent. 

Va.;   Preston  v.  Harvey,  2  Hen.  &  Mun.  55. 

12,a.  Incomplete  instructions — Correcting  and  curing  defective  in- 
structions. 

W.  Va.;  McKelvey  v.  Railway  Co.,   35-500. 
32,b.  Presumptions  as  to  erroneous  instructions. 
W.  Va.;  McKelvey  v.  Railway  Co.,   35-500. 
Va.;Hickman  v.  Breckenridge,  3  Gratt.  127. 


P. 


PARKER  v.  BUILDING  &  LOAN  ASSOCIATION,  55  W. 

VA.  134. 

20,d.  Abstract  propositions — Failure  to  connect  loith  the  evidence. 
W.  Va.;  Reynolds  v.  Tompkins,  23-229. 


xliv  TABLE  OF  CASES— PART  I. 

PARSONS  v.  HAROLD,  46  W.  VA.  122. 

PATTON  v.  NAVIGATION  CO.,  13  W.  VA.  261. 

48,b.  Illegal  evidence — Failure  to  follow  with  other  evidence. 
Va.;  Alderson  v.  Miller,  15  Gratt.  273. 

PERRY  v.  HORN,  22  W.  VA.  381. 

55,d.  Error  appearing  on  the  face  of  the  record — Statute  defined- 
W.  Va.;   Sweeney  v.  Baker,  13-158. 

PHELPS  v.  SMITH,  16  W.  VA.  522. 

PRABST  V.  DRAEUNLICH,  24  W.  VA.  356. 

58, i.  Exceptions  to  instructions — Setting  out  sufficient  grounds — 

Insufficient  grounds. 

W.  Va.;  Miller  v.   Rose,   10-291;    Shrewsbury  v.   Miller,   10- 
115. 

PORTER  v.  MACK,  50  W.  VA.  583. 


R. 


RAY  v.  RAILWAY  CO.,  57  W.  VA.  333. 

l,a.  Reading  law  to  juries  prohibited. 

W.  Va.;  Bloyd  v.  Pollock,  27-75;   Gregory  v.  R.  R.  Co.,  37- 

606;   Ricketts  v.  Railway  Co.,  33-433. 

2,c.  Reading  reports   of   decisions  giving   evidence   of  facts   in- 
volved in  similar  cases  prohibited. 
Same  authorities  as  above. 

2,b.  Reading  text  books  and  reports  to  juries  prohibited. 
Same  authorities  as  above. 

REESE  v.  RAILROAD  CO.,  42  W.  VA.  333. 
REYNOLDS  v.  TOMPKINS,  23  W.  VA.  229. 

RHODES  v.  RAILWAY  COMPANY,  49  W.  VA.  495. 

26,d.  Inconsistent  instructions — Conflicting  theories. 

W.  Va.;  McCreery  v.  R.  R.,  43-110;  Price  v.  Ry.  Co.,  46-538. 

ROBINSON  v.  LOWE,  50  W.  VA.  75. 

41,a.  Singling  out  facts — Ignoring  material  facts. 
W.  Va.;  Price  v.  R.  R.  Co.,  46-538. 


TABLE  OF  CASES— PART  I.  xlv 

ROBINSON  v.  RAILROAD  COMPANY,  40  W.  VA.  583. 

ROBINSON  v.  WOODFORD,  37  W.  VA.  377. 

51,c.  Arguments  of  counsel. 

W.  Va.;  Bimbley  v.  Martin,  28-773. 

ROWAN  &  CO.  v.  HULL,  55  W.  VA.  428. 

RUFFNER  v.  HILL.  31  W.  VA.  428. 

48,a.  Illegal  evidence — When  party  cannot  complain  of. 

W.  Va.;   Miller  v.   Rose,   21-291;    Shrewsbury  v.   Miller,    10- 
115. 

RUTTER  v.  SULLIVAN,  25  W.  VA.  427. 
S. 

SHEFF  v.  CITY  OF  HUNTINGTON,  16  W.  VA.  307. 

16,b.  Correct  assumption  of  facts. 

W.  Va.;  Newlin  v.  Beard,  6-110. 

Va.;   Blosser  v.  Harshbarger,  21  Gratt.  214. 

SHEPPARD  v.  INSURANCE  CO.,  21  W.  VA.  370. 

19,b.  Abstract    questions — Actions    of   appellate   court   as    to    er- 
roneous instructions. 

Va.;  Hunter  v.  Jones,  6  Rand,  54;  Pasley  v.  English,  10 
Gratt.  236. 

SHREWSBURY  v.  TUFTS,  41  W.  VA.  213. 

29,g.  Correcting  faulty  instructions. 

W.  Va.;   Ruffner  v.  Hewett,  7-585. 

Va.;  Robertson    v.    Wright,    17    Gratt.    534;    Townes   v. 
Burchell,  12  Leigh.  173. 

SKEELS  v.  RAILROAD  COMPANY,  3  W.  VA.  556. 

41,d.  Law  applicable  to  facts. 

W.  Va.;  Rathbone  v.  Railroad  Co.,  1-106. 
Va.;   Clayton  v.  Anthony,  6  Rand.  285. 

SNOOKS  v.  WINGFIELD.  52  W.  VA.  442. 

<57,a.  Excluding  evidence. 

W.  Va.;   Maxwell  v.  Kent,  49-542. 

43,a.  Competency     of     evidence — How     determined — Preliminary 
facts. 


xlvi  TABLE  OF  CASES— PART  1. 

SNYDER  v.  RAILROAD  CO.,  11  W.  VA.  14. 

STATE  v.  ALLEN,  45  W.  VA.  65. 

19,a.  Abstract  questions — Court  not  required  to  instruct  as  to. 

Va.;  Pasley  v.  English,  10  Gratt.  226. 
18,1.  Assumption   of  facts — Intimation   of   court's   opinion  as   to 

facts. 
39,a.  Disregarding    testimony   of   witnesses — Province    of    courts 

as  to. 
49,b.  Intimation  of  court's  opinion  of  evidence — Assuming  certain 

things  as  facts. 
W.  Va.;  State  v.  Shores,  31-491. 

STATE  v.  BEATTY,  51  W.  VA.  232. 

5,b.  Necessity  for  asking  instructions — Degrees  of  punishment. 
W.  Va.;  State  v.  Cobb,  40-718. 

STAiE  v.  BETSALL,  11  W.  VA.  703. 

27,a.  Suppositive  instructions — Evidence  tending  to  prove  case. 
Va.;  Early  v.  Garland,  13  Gratt.  1;  Hopkins  v.  Richardson, 

9   Gratt.   485. 

47,b,c.  Uncorroborated     evidence — Accomplices — Phohibiting     in- 
structions as  to. 
W.  Va.;   State  v.  Hurst,  11-54. 

Va.;  Brown's  cases,  2   Va.   490;    Bjgd's  cases,  2  Leigh. 
769. 

STATE  v.  BINGHAM,  42  W.  VA.  239. 
28,a,b.  Repeating    instructions  —  Refusal    of    instructions    when 

others  given  on  same  point. 
W.  Va.;  Kerr  v.  Lunsford,  31-659. 
Va.;  Nicholas'  cases,  91  Va.  742. 

STATE  v.  BOWYER,  43  W.  VA.  102. 
74,g.  Weighing  the  evidence  by  the  appellate  court. 

W.  Va.;  Gilmer   v.   Sydenstricker,   42-57;    State   v.   Hunter, 
37-744. 

STATE  v.  CADDLE,  35  W.  VA.  73. 
STATE  v.  CAIN,  20  'W.  VA.  681. 
STATE  v.  CLARK,  51  W.  VA.  458. 


TABLE  OF  CASES— PART  I.  xlvli 

STATE  v.  COBB,  40  W.  VA.  718. 

6,c.  Degrees  of  punishment. 

W.  Va.;   State  v.   Caddie,  35-73. 

Va.;  Wormack  v.  Circle,  29  Gratt.  192. 
26,a.  Specific  instructions — Necessity  for  asking  and  giving. 

Va.;  Brook  v.   Young,   3   Rand.   106;    Dejarnette's   case,   75 
Va.  877;    Kitty  v.  Fitzhugh,   4  Rand.  600;    Rosen- 
baum  v.  Welden,  18  Gratt.  785. 
6,a.  Time  for  offering  instructions — Discretion  of  trial-courts  as 

to. 
W.  Va.;  Jarrett  v.  Stevens,  36-445;   State  v.  Davis,  31-390; 

Tully  v.  Despard,  31-973. 

Va.;  Gibson's   cases,   2   Va.   Cases,   70;    Gwatkin's   case, 
9  Leigh.  678;  Sledd's  case,  19  Gratt.  813. 

STATE  v.  COTTRILL,  52  W.  VA.  363. 

9,a.  Author  of  instructions — Who  regarded  as. 

Va.;  Gray's  case,  92-772. 
12,c.  Incomplete  instructions — Giving   other  proper  instructions. 

W.  Va.;   State  v.  Prater,  52-132. 

29,d.  Numerous    instructions — Instructions    clearly    laying    down 
the  law. 

W.  Va.;   State  v.  Bingham,  42-234. 

STATE  v.  CROSS,  42  W.  VA.  253. 

f 

STATE  v.  DAVIS,  52  W.  VA.  224. 

10,d.  Instructions  not  justified  by  the  evidence. 

W.  Va.;   State  v.  Cain,  20-679;   State  v.  Jones,  20-764;   State 
v.  Robinson,  20-743. 

STATE  v.  DICKEY,  46  W.  VA.  319. 

17,f.  Important  and  material  facts  not  conceded  as  true. 
W.  Va.;   State  v.  Robinson,  20-714. 

Va.;  Boswell  v.  Com.,  20  Gratt.  860. 


STATE  v.  DICKEY,  48  W.  VA.  325. 

2,d.  Opinion  of  appellate  court  commenting  on  the  evidence  given 

at  a  former  trial. 
W.  Va.;  Bloyd    v.    Pollock,    27-75;    Gregory   v.    R.    R.,    37- 

606;   State  v.  Hurst,  11-77. 

Va.;  Brown  v.  Com.  86-466;   Dejarnette  v.  Com.  75-867; 
Doss's  case,  1  Gratt.  559. 


xlviii  TABLE  OF  CASES— PART  I. 

STATE  v.  DODDS,  54  W.  VA.  289. 

41,d.  Giving  undue  prominence  to  certain  facts. 

W.  Va.;  McCreery     v.     R.     R.,  43-110;      Price     v.     R.     R., 

46-538;  Webb  v.  Packet  Co.,  42-800. 
9,b.  What  necessary  to  insert  in  instructions. 

STATE  v.  DONAHOO,  22  W.  VA.  761. 
STATE  v.  DOUGLAS,  28  W.  VA.  298. 
STATE  v.  EVANS,  33  W.  VA.  418. 

STATE  v.  GREER,  22  W.  VA.  800. 

10,c.  Misleading  instructions. 

52,a.  Self  defence — Character  of  accused. 

W.  Va.;   State  v.  Cain,  20-679. 
44,a.  Weight  of  testimony — Instructions  as  to  prohibited. 

W.  Va.;  State  v.  Thompson,  21-741. 

STATE  v.  HARR,  '38  W.  VA.  59. 

6*  d.  How  objection  to  evidence  made  available. 
W.  Va.;  Gregory  v.  Ry.  Co.,  37-606. 

STATE  V.  HATFIELD,  48  W.  VA.  561. 

37,c.  Competency  of  witnesses — As  to  one  convicted  of  felony. 
W.  Va.;  Code,  Chap.   152,   Sec.   17. 

STATE  v.  HENRY.  51  W.  VA.  284. 

59,1.  Proceedings  of  trial-court — Presumptions  as  to  regularity  of. 
W.  Va.;   State  v.  Beatty,  51-232. 

STATE  v.  HERTZOG,  55  W.  VA.  75. 

ll.f.  Instructions  not  adapted  to  nor  based  upon  the  evidence. 

W.  Va.;  Hutchinson  v.  Parkersburg,  23-226;   Kerr  v.  Luns- 
ford,  31-659;  State  v.  Belknap,  39-427. 

STATE  v.  HURST,  11  W.  VA.  54. 

49,c.  Intimation   of  court's  opinion  of  evidence — Influencing  the 

jury. 

Va.;  Doss'  case,  1  Gratt.  559;   Gregory  v.  Baugh,  2  Leigh. 

665;    Keel  v.  Hubert,  1  Wash.  203;    McDowell  v. 

Crawford,  11  Gratt.  405;  Rosser  v.  Gill,  1  Wash.  88. 

STATE  v.  KELLISON,  56  W.  VA.  691. 


TABLE  OF  CASES— PART  I.  xlix 

STATE  v.  KERNS,  47  W.  VA.  266. 

50,e.  Intimation  of  court's  opinion  of  the  evidence  as  to  guilt  of 

accused. 

W.  Va.;  Neill  v.   Produce  Co.,   38-228;    State  v.   Cobbs,   40- 

72;    State  v.  Greer,  28-800;    State  v.  Hurst,  11-54; 

Va.;  McDowell   v.   Coffin,    11   Gratt.   405;    Dejarnett  v. 

Com.,  75-867. 
29,e.  Phases  of  case  not  presented  in  other  instructions. 

W.  Va.;  State  v.  Allen,  45-66;   State  v.  Cobb,  40-718;   State 
v.  Evans,  33-417;   State  v.  Musgrave,  43-672. 

STATE  v.  KINNEY,  26  W.  VA.  141. 

74,i.  Irrelevant  evidence — What  authorized,  reversal   because  of 

admission  of. 

Va.;   Insurance  Co.  v.  Trear,  29  Gratt.  255;  Payne  v.  Com., 
31  Gratt.  855. 

STATE  v.  LOWE,  21  W.  VA.  782. 

17,d.  Facts  admitted  or  sustained  by  the  evidence. 

W.  Va.;   Sheff    v.    City    of    Huntington,    16-307;      State    v. 

Robinson,  20-714. 
Va.;  McDowell  v.  Crawford,  11  Gratt.  377. 

STATE  v.  MANNS,  48  W.  VA.  480. 
24,e.  Instructions  not  fully  stating  the  law. 
24,d.  Instructions  not  justified  by  the  evidence. 

W.  Va.;   State  v.  Jones,  20-764. 

31,c.  Instructions  presenting  defence  and  supported  by  the  evi- 
dence. 
W.  Va.;   State  v.  Cain,  20-679;   State  v.  Kerns,  47-266. 

Va.;  Honesty's  case,  81-283;  Jackson  v.  Commonwealth, 
96-107;  Parrish  v.  Commonwealth,  81-1;  Stoneman's 
case,  25  Gratt.  900. 

STATE  v.  McGLUMPHEY,  37  W.  VA.  805. 
61,c,d.  When  bills  of  exception  may  be  made  and  tendered. 

W.  Va.;  Ramsburg  v.  Erb,  16-778;   Smith  v.  Townsend,  21- 
486;   State  v.  Miller,  26-106. 

STATE  v.  MICHAEL,  37  W.  VA.  565. 
STATE  v.  MORGAN,  35  W.  VA.  260. 
STATE  v.  MORRISON,  49  W.  VA.  211. 
STATE  v.  MUSGRAVE,  43  W.  VA.  672. 


1  TABLE  OF  CASES— PART  I. 

STATE  v.  PERRY,  41  W.  VA.  642. 

39,b.  Disregarding  testimony  of  witnesses — Province  of  jury  as  to. 

W.  Va.;  State  v.  Thompson,  21-741. 
47,a.  Uncorroborated  evidence — Province  of  jury  as  to. 

W.  Va.;  State  v.  Betsall,  11-740;  State  v.  Cooper,  26-338; 
State  v.  Morgan,  35-273;  State  v.  Thompson,  21- 
741. 


STATE  v.  PINE,  56  W.  VA.  1. 

STATE  v.  POINDEXTER,  23  W.  VA.  805. 

17,e.  Assumption  of  facts — State  of  facts  unsupported  by  the  evi- 
dence. 
W.  Va.;Winkler  v.  Ry.  Co.,  12-609. 


STATE  v.  PRATER,  52  W.  VA.  133. 

12,d.  Incomplete  instructions — Giving  other  proper  instructions. 
W.  Va.;  Clark  v.  Donaldson,  15-804;  Fant  v.  Lamon,  22-229. 


STATE  v.  ROBINSON,  20  W.  VA.  714. 

STATE  v.  SHEPPARD,  49  W.  VA.  585. 

43,a.  Circumstantial  evidence — What  necessary  for  conviction  on. 
(Note: — The  court  in  this  case  holds  that,  "beyond  a  rea- 
sonable doubt"  and  "to  a  moral  certainty"  are  equivalent 
terms.) 
W.  Va.;  Kerr  v.  Lunsford,  31-662;    State  v.  Baker,  33-319; 

State  v.  Flanagan,  26-117. 

ll,g.  Failure  of  instructions  to  refer  to  the  evidence. 
Overruling  Jarrett  v.  Stevens,  36  W.  Va.  445. 


STATE  v.  SUTPHIN,  22  W.  VA.  772. 

STATE  v.  TAYLOR,  57  W.  VA.  228. 

38,b.  Mistake    in    not    swearing    witnesses — Discovery    of   after 

verdict. 

W.  Va.;   State  v.  Lowry,  42-205;   State  v.  Thompson,  21-741. 
49,a.  Intimation  of  court's  opinion  of  weight  of  evidence. 
W.  Va. ;   State  v.  Hunt,  11-75. 

Va.;  McDowell  v.   Crawford,   11   Gratt.   405. 
49,d.  Same  and  same  authority  cited. 


TABLE  OF  CASES— PART  I.  II 

STATE  v.  THOMPSON,  21  W.  VA.  742. 
49,a.  Discussion  of  evidence  by  the  court. 
W.  Va.;   State  v.  Hurst,  11-75. 

Va.;  McDowell  v.  Crawford,  11  Gratt.  405. 
49,d.  Intimation  of  court's  opinion  of  evidence. 
Citing  same  authorities  as  above. 

STATE  v.  THOMPSON,  26  W.  VA.  150. 

72,a.  Setting  aside  the  verdict — Necessity  for  motion  for. 

W.  Va.;  Danks  v.  Rodeheaver,  26-274;   State  v.  Phares,  24- 
757. 

STATE  v.  TUCKER,  52  W.  VA.  421. 

STATE  v.  WELCH,  36  W.  VA.  691. 

53,c.  Degrees  of  punishment — Whether  murder  in  first  or  second 

degree. 

W.  Va.;   State  v.  Robinson,  20-713. 
Va.;  Willis's  case,  32  Gratt.  929. 

STATE  v.  WILLIAMS,  49  W.  VA.  220. 

STATE  v.  WOODROW,  58  W.  VA.  — . 

37,b.  Competency    of    witness — Wife    not    a    competent    witness 

against  her  husband  in  a  prosecution  for  crime. 
W.  Va.;  Code,  Chap.  152,  Sec.  19. 

30,c.  Oral  instructions — Refusal  of  correct  written  instructions. 
W.  Va.;   State  v.  Kerns,  47-266. 

Va.;  Booth  v.  Com.,  4  Gratt,  525;  Morrelick  v.  Pankly, 
91-259;  Norfolk  Co.  v.  Marpole,  97-594;  Ry.  Co.  v. 
Norment,  84-167;  Simms  v.  McConnell,  86-498. 

STATE  v.  ZIEGLER,  40  W.  VA.  594. 

75,k.  Setting  aside  the  verdict — Wholly  insufficient  evidence. 
W.  Va.;   State   v.   Foster,    21-767. 

Va.;   Grayson  v.  Commonwealth,  6  Gratt.  712. 

STEWART  V.  DOAK,  58  W.  VA.  — . 

STORRS  v.  FEICK,  24  W.  VA.  606. 

42,c.  Singling  out  facts — Existence  of  other  facts. 
W.  Va.;  McMechen  v.  McMechen,   17-684. 

Va.;  Beury  v.  Ensel,  2  Gratt.  333;  Dogan  v.  Leekright, 
4  H.  &  M.  125;  Dyerle  v.  Starr,  28  Gratt.  800. 


Ill  TABLE  OF  CASES— PART  I. 

T. 

TAYLOR  v.  RAILROAD  CO.,  37  W.  VA.  40. 

75,1.  Illegal  evidence — Presumptions  as  to. 

W.  Va.;  Hall   v.   Lyons,   29-410;    Thomas   v.   Electrical  Co.. 
54-395. 

13,b.  Instructions  correctly  propounding  the  law. 

W.  Va.;  Hall  v.  Lyons,  29-410;  Thomas  v.  Electrical  Co.,  54- 
395. 

15,h.  Modification    of    instructions  —  Harmless    modification    of 
proper  instructions. 

W.  Va.;  Elaine  v.  R.  R.  Co.,  9-253;  Sheff  v.  City  of  Hunting- 
ton,  16-307;  Washington  v.  R.  R.  Co.,  17-190. 

THOMAS   v.   ELECTRICAL   CO.,    54    W.    VA.    395. 
W.  Va.;  Johnson  v.  R.  R.  Co.,  25-570;  Ketterman  v.  R.  R. 
48-606;   Woolwine  v.  R.  R.,  36-329. 

THOMPKINS  v.  INSURANCE  CO.,  53  W.  VA.  479. 
TOMPKINS  v.  KANAWHA  BOARD,  21  W.  VA.  224. 
TRACEWELL  v.  COUNTY  COURT,  58  W.  VA.  — . 

TRACY  v.  COAL  CO.,  58.  W.  VA. . 

6C,i.  Skeleton  bills  of  exception — Hoic  made  part  of  the  record. 
W.  Va.;  Gunn  v.  R.  R.  Co.,  37-421;   McKendree  v.  Shelton, 
ri-516. 

66, j.  Same — Time  within  which  to  certify  and  identify  the  evi- 
dence. 

W.  Va.;   Same  as  above. 
65,g.  Stenographic  reports — Hoic  made  part  of  the  record. 

W.  Va.;   Same  as  above. 

TULLEY  v.  DESPARD,  31  W.  VA.  370. 

7,d.  Time  for  offering  instructions — Abuse  of  discretion  of  trial- 

courts  as  to. 
W.  Va.;  Organ  Co.  v.  House,  25-64;  68. 

TURNER  v.  RAILROAD  CO.,  40  W.  VA.  675. 

14.f.  Failure  to  modify  instructions. 

W.  Va.;   Gregory  v.  R.  R.  Co.,  37-606. 


TABLE  OF  CASES— PART  I.  liii 

V. 

VAN  WINKLE  v.  BLACKFORD,  28  <W.  VA.  671. 
6y,f.  Memoranda  made  on  the  record  book  of  trial-court. 

W.  Va.;  Danks   v.   Rodeheaver,   26-274;    Veith   v.    Salt  Co., 

51-96. 

29,f.  Numerous  instructions — Inquiry  as  to  a  particular  matter. 
W.  Va.;  Bess  v.  R.  R.  Co.,  35-442;   Land  Co.  v.  Insurance 
Co.,  35-666. 

VINAL  v.  CORE,  18  W.  VA.  2. 
51,a.  Probable  cause — Mixed  questions  of  law  and  fact — Province 

of  courts  as  to. 
W.  Va.;   Snyder  v.  R.  R.  Co.,   11-34;   Washington  v.  R.  R. 

Co.,    17-215. 

Va.;  Mowery  v.  Miller,  3  Leigh.  561;   Spingle  v.  Davy, 
15  Gratt.  381;   Scott  v.  Schelor,  38  Gratt.  906. 

VEITH  v.  SALT  CO.,  51  W.  VA.  96. 

VINTROUX  v.  SIMMS,  45  W.  VA.  548. 
73,d.  When  the  evrdict  not  supported  by  the  evidence. 
W.  Va.;   Beall  v.  Ry.  Co.,  38-526. 

W. 

WARD  v.  BROWN,  53  W.  VA.  227. 

38,a.  Classification    of    witnesses — Opportunity    of    witnesses    to 

know  the  truth. 
W.  Va.;  Jarrett  v.   Jarrett,    11-584;    Kerr   v.  -Lunsford,   31- 

659;    Nicholas   v.   Kershner,   20-251. 
40,c.  Disregarding  testimony  of  witnesses — Weight  of  evidence. 

Va.;  Tucker  v.  Sandridge,  75-546. 
44,c.  Expert  evidence — Connecting  with  other  evidence. 

W.  Va.;   Jarrett   v.   Jarrett,   11-584;    Kerr  v.   Lunsford,   31- 

659. 

Va.;  Burton  v.  Scott,  3  Rand.  399;  Parraman  v.  Taylor, 
11   Gratt.   220;    Simmermann  v.   Sanger,  29   Gratt. 
9;  Cheatham  v.  Hatcher,  30  Gratt,  56  Montague  v. 
Allen,   78-582;    Shacklett  v.   Roller,   99-659. 
13,c.  Proper  instructions  nullified  by  improper  instructions. 

W.  Va.;  Webb  v.  Dye,  18-376. 
30,a.  Refusal  of  proper  instructions — Effect  of  refusal. 

W.  Va.;  Boggess  v.   Taylor,   47-254;    Nicholas   v.  Kershner, 

20-251. 
Va.;  Bank  v.  Waddill,  29  Gratt.  451. 


liv  TABLE  OF  CASES— PART  I. 

WARD  v.  BROWN,  53  W.  VA.  227— Continued. 
39,b.  Singling  out  witnesses — When  instructions  proper  in  other 

respects. 

W.  Va.;  Kerr  v.  Lunsford,  31-659. 
45,a.  Specifying  weight  and  value  of  testimony. 

Va.;  Beverly  v.  Weldron,  20  Gratt.  147;  Temple  v.  Temple, 
1  Hen.  &  Mun.  576;  Mercer  v.  Kelsoe,  4  Gratt.  106. 

WARD  v.  WARD.  47  W.  VA.   766. 

34,b.  Harmless  instructions — Presumptions  as  to. 
W.  Va.;  Osborn  &  Co.  v.  Francis,  38-312. 
25,b.  Failure  of  good  instructions  to  cure  bad  instructions. 

W.  Va.;  Industrial  Co.  v.  Schults,  43-471;  McCreery  v.  R.  R. 
Co.,  43-110;  McKelvey  v.  R.  R.  Co.,  35-501. 

WASHINGTON  v.  RAILROAD  CO.,  17  W.  VA.  215. 

42,f.  Making  specific  facts  basis  of  instructions. 
W.  Va.;  Snyder  v.  Railroad  Co.,  11-34. 

WATTS  v.  RAFLROAD  CO..  39  W.  VA.  198. 

33,c.  Disregarding  erroneous  instructions. 

Webb  v.  Packett  Company,  43  W.  Va.,  800. 
46,b.  Conflicting  evidence — Law  applicable  to  different  theories. 
W.  Va.;  Fisher  v.   R.   R.,   39-371;    Searles  v.  Railway,   32- 

370. 
Va.;  Pasley  v.  English,  10  Gratt.  236. 

WELLS  v.  SMITH,  49  W.  VA.  78. 
71,m.  Alteration  of  the  record — How  record  restored — Inserting 

matter  not  part  of  the  record. 

W.  Va.;  Despard  v.  County,  23-318;  Herring  v.  Lee,  22-661; 
Koontz  v.  Koontz,  47-31;  Lumber  Co.  v.  Brooks, 
46-732;  State  v.  Vest,  21-796. 

62,h.  Bills  of  exception — When  must  be  noted,  certified  and  re- 
corded. 

W.  Va.;  Bank  v.  Showacre,  26-48;  Craft  v.  Mann,  46-478; 
Furbee  v.  Shay,  46-736;  Hughes  v.  Frum,  41445; 
Jordan  v.  Jordan,  48-600;  Ketterman  v.  R.  R.,  48- 
606;  Koontz  v.  Koontz,  47-315;  Wiokes  v.  R.  R., 
14-157. 

WERNER  v.  CALHOUN,  55  W.  VA.  247. 

11,1.  Relevancy  of  instructions — Directing  enquiries  as  to  facts 

not  material. 
Va.;  Rosenbaum  v.  Weeden,  18  Gratt.  785. 


TABLE  OF  CASES— PART  I.  lv 

WHITE  v.  BREWING  CO.,  51  W.  VA.  259. 

41,e.  Doubtful  material  facts. 

W.  Va.;  Ketterman  v.  Railroad  Co.,  48-606. 
45,e.  Preponderance  of  evidence — Doubtful  material  facts. 

Va.;  Fisher  v.  Duncan,  1  Hen.  &  Mun.  363;  Hollings- 
worth  v.  Dunbar,  5  Mun.  199;  Keed  v.  Herbert,  1 
Wash.  203. 

WICKES  v.  RAILROAD  COMPANY,  14  W.  VA.  151. 

68,a.  Bills   of  exception — What  necessary   to  make  part  of  the 
record. 

WINTERS  v.  NULL,  31  W.  VA.  450. 

70,g.  Instructions  copied  into  the  record — Failure  of  bills  of  ex- 
ceptions to  refer  to. 
W.  Va.;  Bank  v.   Showacre,   26   W.   Va.,   48. 

WOODELL  v.  IMPROVEMENT  COMPANY,  38  W.  VA.  23. 
Y. 

YOUNG  v.  RAILROAD  COMPANY,  44  W.  VA.  218. 

73,e.  Verdict — How  regarded  by  appellate  court. 

W.  Va.;  Adkins  v.  Dewitt,  41-229;   Sisler  v.  Shafer,  43-769. 


PART  I. 

THE  LAW  OF  INSTRUCTIONS. 


I.     NECESSITY  FOR  INSTRUCTIONS. 
II.     PURPOSE  OF  INSTRUCTIONS. 
III.     LEGAL  PRINCIPLES  GOVERNING  INSTRUC- 
TIONS. 
IV.     EXCEPTIONS  TO  INSTRUCTIONS. 


I.     NECESSITY  FOR  INSTRUCTIONS. 

a.  Reading  law  to  juries  prohibited. 

b.  Same — Text  books  and  reports. 

c.  Same — Decisions  giving  evidence    or   facts    in- 
volved in  similar  cases. 

d.  Opinion  of  the  appellate  court  commenting  on 
evidence  given  at  a  former  trial. 

a.    Reading  Law  to  Juries  Prohibited. 

Attorneys  should  argue  and  apply  the  facts,  and  get 
the  law  by  instructions  from  the  court,  if  desired.  If  it 
is  true  that  the  jury  is  the  judge  of  the  evidence,  and  the 
court  of  the  law,  then  it  follows  that  law  should  not  be 
read  to  the  jury;  for  if  the  jury  is  not  the  judge  of  the 


2  PURPOSE  OF  INSTRUCTIONS. 

law,  why  read  law  books  to  it?    Ray  v.  Railicay  Co.,  57 
W.  Va.  333. 

b.  Same — Text  Books  and  Reports. 

A  court  may  and  should  refuse  to  allow  counsel  to  read 
law  books,  either  text-books  or  reports,  in  addressing  the 
jury,  if  objected  to.  Ray  v.  Railway  Co.,  57  W.  Va.  333. 

c.  Decisions  giving  evidence  or  facts  involved  in  similar 

cases. 

Reading  reports  of  decisions  giving  evidence  or  facts 
involved  in  decided  cases,  more  or  less  similar  in  char- 
acter, if  objected  to,  should  not  be  allowed,  and  its  allow- 
ance, over  objection,  is  reversible  error.  Ray  v.  Railway 
Co.,  57  W.  Va.  333. 

d.  Opinion  of  the  appellate  court  commenting  on  the 

evidence  given  at  a  former  trial. 

On  a  second  trial,  a  party  has  no  right  to  have  read  to 
the  jury  an  extract  from  an  opinion  of  the  appellate  court 
on  a  former  writ  of  error  in  the  same  case  commenting 
on  the  weight  and  effect  of  the  evidence  given  on  a  former 
trial,  though  it  be  the  same  evidence  on  the  second  trial. 
State  v.  Dickey,  48  W.  Va.  325. 


II.     PURPOSE  OF  INSTRUCTIONS. 

a.     Office  of  instructions. 

It  is  the  object  and  office  of  instructions  to  define  for 
the  jury,  and  to  direct  their  attention  to,  the  legal  princi- 
ples which  apply  to,  and  govern,  the  facts  proved  or  pre- 
sumed in  the  case.  The  instructions  should  simply 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.         3 

develop  the  rules  of  law  governing  the  particular  facts,— 
all  the  facts, — not  a  part  only,  which  the  evidence  tends  to 
establish;  and  they  are  to  be  interpreted  and  judged  of, 
not  in  any  abstract  way,  but  with  reference  to  those  facts. 
State  v.  Dodds,  54  W.  Va.  289. 

III.     LEGAL  PRINCIPLES  GOVERNING  INSTRUC- 
TIONS. 

• 

1.  BASES  FOR  INSTRUCTIONS. 

2.  NECESSITY  FOR  ASKING   INSTRUCTIONS. 

3.  TIME  FOR  OFFERING  INSTRUCTIONS. 

4.  DUTY  OF  COURTS  TO  INSTRUCT  AS  TO  THE  LAW. 

5.  RIGHT   OF   PARTY   TO   HAVE    INSTRUCTION   GIVEN    IN 
HIS   OWN   LANGUAGE. 

6.  HOW  INSTRUCTIONS  TO  BE  TAKEN  AND  READ. 

7.  RELEVANCY    OF   INSTRUCTIONS. 

8.  INCOMPLETE    INSTRUCTIONS. 

9.  MODIFICATION  OF  INSTRUCTIONS. 

10.  SUBMITTING   QUESTIONS   OF   LAW   ONLY. 

11.  ASSUMPTION  OF  FACTS. 

12.  MIXED  QUESTIONS   OF   LAW   AND  FACT. 

13.  ABSTRACT   QUESTIONS. 

14.  ABSTRACT  OR  ERRONEOUS  PROPOSITIONS  OF  LAW. 

15.  HYPOTHETICAL   INSTRUCTIONS. 

16.  VAGUE  OR  OBSCURE  INSTRUCTIONS. 

17.  CONFUSING  OR  MISLEADING  INSTRUCTIONS. 

18.  INCONSISTENT  INSTRUCTIONS. 

19.  CONJECTURAL   INSTRUCTIONS. 

20.  SPECIFIC  INSTRUCTIONS. 

21.  SUPPOSITIVE   INSTRUCTIONS. 

22.  NUMEROUS      INSTRUCTIONS — REPEATING      INSTRUC- 
TIONS. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

23.  REFUSAL  OF   PROPER  INSTRUCTIONS. 

24.  GIVING    IMPROPER  AND   REFUSING    PROPER    INSTRUC- 
TIONS. 

25.  PRESUMPTIONS  AS  TO  ERRONEOUS    INSTRUCTIONS. 

26.  DISREGARDING   INSTRUCTIONS. 

27.  AFFIDAVITS   OF    JURORS   AS   TO    UNDERSTANDING    IN- 

STRUCTIONS. 

28.  HARMLESS  INSTRUCTIONS. 

29.  LOST  INSTRUCTIONS. 

30.  WITNESSES COMPETENCY   OF — IN   GENERAL. 

31.  MISTAKE  IN  NOT  SWEARING  WITNESSES. 

32.  CLASSIFICATION   OF   WITNESSES. 

33.  SINGLING  OUT  WITNESSES. 

34.  IMPEACHMENT  OF  WITNESSES. 

35.  DISREGARDING   TESTIMONY   OF   WITNESSES. 

36.  EXISTENCE  OF  FACTS. 

37.  SINGLING  OUT  FACTS. 

38.  COMPETENCY  OF  EVIDENCE — PRELIMINARY  FACTS. 

39.  CIRCUMSTANTIAL   EVIDENCE. 

40.  WEIGHT  AND   PREPONDERANCE   OF   EVIDENCE. 

41.  CONFLICTING   OR   CONTRADICTORY    EVIDENCE. 

42.  COLORABLE  EVIDENCE. 

43.  UNCORROBORATED  EVIDENCE. 

44.  ISOLATED  PORTIONS  OF  EVIDENCE. 

45.  INADMISSIBLE  OR  ILLEGAL  EVIDENCE. 

46.  INTIMATION  OF  COURTIS  OPINION  OF  EVIDENCE. 

47.  ARGUMENTS  OF  COUNSEL. 

48.  PROBABLE  CAUSE. 

49.  EXISTENCE  OF  MALICE. 

50.  SELF-DEFENSE. 

51.  CHARACTER  OF  ACCUSED CHARACTER  OF  VICTIM. 

52.  DEGREES  OF  PUNISHMENT. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.         5 

1.  BASES  FOR  INSTRUCTIONS. 

a.  Foundation  in  the  evidence  for  instructions. 

An  instruction,  though  correct  in  law,  should  be  re- 
fused unless  there  is  a  basis  for  it  in  the  evidence,  and 
it  is  the  province  of  the  court  to  determine  whether  there 
is  a  foundation  in  the  evidence  for  any  particular  instruc- 
tion. Parker  v.  Building  Asso.,  55  W.  Va.  134. 

2.  NECESSITY  FOR  ASKING  INSTRUCTIONS. 

a.  Bequest  for  and  refusal  of  instructions. 

b.  Same — As  to   degrees    of    punishment — Silent 
record. 

a.    Request  for  and  refusal  of  instructions. 

A  verdict  will  not  be  disturbed  for  want  of  a  proper 
instruction,  unless  it  was  requested  and  refused,  nor  for 
failure  of  the  trial-court  to  so  modify  an  improper  in- 
struction requested  so  as  to  make  it  proper  and  then  give 
it,  unless  it  can  be  seen  that  such  failure,  for  some  reason, 
such  as  other  incomplete  instructions  given,  may  have 
prejudiced  the  party  requesting  it.  Werner  v.  Calhoun, 
55  W.  Va.  247. 

b.  Same — As  to  degrees  of  punishment — Silent  record. 
The  court  is  not  bound  to  instruct  the  jury,  in  a  mur- 
der case,  that  if  they  find  the  defendant  guilty  of  first  de- 
gree murder  they  may  recommend  in  the  verdict  that  he 
be  confined  in  the  penitentiary,  and  thus  avert  the  in- 
fliction of  the  death  penalty,  unless  the  prisoner  requests 
such  instruction.    When  in  such  case  the  record  is  silent 
as  to  the  asking,  giving  or  refusal  of  such  instruction,  it 


6        LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

is  conclusively  presumed  that,  if  requested  by  the 
prisoner,  it  was  given,  and  if  it  was  not  requested,  that  he 
waived  it.  State  v.  Beatty,  51  W.  Va.  232. 

3.      TIME   FOR  OFFERING   INSTRUCTION'S. 

a.  Discretion  of  trial-courts  as  to. 

b.  Rules  of  trial-courts  as  to. 

c.  Degrees  of  punishment. 

d.  Rights  of  counsel  as  to — Abuse  of  discretion 

by  trial-courts. 

e.  Same. 

a.  Discretion  of  trial-court  as  to. 

The  law  does  not  fix  any  time  for  giving  instructions. 
The  court  may  fix  it  by  rule.  State  v.  Co&bs,  40  W.  Va., 
718. 

b.  Rules  of  trial-courts  as  to. 

A  rule  of  a  circuit  court  "that  instructions  to  a  jury 
will  not  be  entertained  or  considered,  unless  submitted 
before  the  conclusion  of  the  argument  of  the  case,"  is  a 
reasonable  rule  and  tends  to  the  promotion  of  justice 
and  should  be  enforced,  unless  in  a  particular  case  there 
exist  peculiar  circumstances,  which  would  render  the 
enforcement  of  this  rule  unjust  to  one  of  the  parties,  and 
in  such  a  case,  the  court  ought  to  disregard  the  rule  and 
grant  or  refuse  instructions  though  asked  too  late  under 
the  rule.  Organ  Co.  v.  House,  25  W.  Va.  65. 

c.  Degrees  of  punishment. 

It  is  not  error  for  a  court  to  omit  to  instruct  a  jury  that 
murder  in  the  first  degree  may  be  punished  either  with 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.         7 

death  or  by  confinement  in  the  penitentiary,  unless  asked 
to  do  so. 

It  is  error  to  refuse  to  do  so  when  asked,  though  not 
asked  till  the  jury  has  announced  its  verdict,  but  before 
its  discharge.  State  v.  Cobbs,  40  W.  Va.  718. 

d.  Right  of  counsel  as  to — Abuse  of  discretion  by  trial- 

courts. 

It  is  the  legal  right  of  counsel  on  the  trial  to  submit 
instructions  to  the  jury,  and  have  them  passed  upon  by 
the  court;  but  where  instructions  are  submitted  by  coun- 
sel after  the  jury  had  been  directed  to  retire,  and  the 
court  refused  to  consider  them  because  offered  too  late, 
this  court  will  not  reverse  the  judgment  of  the  trial-court, 
unless  it  affirmatively  appears  that  the  said  court  mani- 
festly abused  the  large  discretion  vested  in  it  in  respect 
to  its  action  in  the  matter.  Tully  v.  Despard,  31  W.  Va. 
370. 

e.  Same. 

It  is  the  right  of  counsel  to  submit  instructions  and 
have  them  passed  upon  by  the  court;  but  where  they  are 
submitted  after  the  jury  have  retired,  and  the  court  re- 
fuses to  receive  them,  this  court  will  not  reverse  the  trial- 
court,  unless  it  affirmatively  appear  that  it  manifestly 
abused  its  large  discretion  in  such  a  matter.  Jarrett  v. 
Stevens,  36  W.  Va.  446. 

4.   DUTY  OF  COURTS  TO  INSTRUCT  AS  TO  THE  LAW. 

a.     Duty  of  courts  to  instruct  when  asked  to  do  so. 

It  is  the  plain  duty  of  a  trial-court,  when  asked  to  do  so, 
by  either  party,  to  instruct  the  jury  on  questions  of  law 


g        LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

involved  in  the  case,  when  it  can  thereby  aid  them  m 
reaching  a  right  conclusion  and  proper  verdict.  Davis  v. 
We&6,  46  W.  Va.  6. 

5.  RIGHT  OF  PARTY  TO  HAVE  INSTRUCTIONS  GIVBN  IN 

HIS  OWN   LANGUAGE. 

a.  Qualifications  as  to. 

b.  Same. 

c.  Same. 

a.  Qualifications  as  to. 

A  party  has  a  right  to  have  his  instruction  given  in  his 
own  language,  provided  there  are  facts  in  evidence  to 
support  it,  that  it  contains  a  correct  statement  of  the 
law  and  is  not  vague,  irrelevant,  obscure,  ambiguous,  or 

• 

calculated  to  mislead.    State  v.  Evans,  33  W  .Va.  418. 

b.  Same. 

A  party  has  the  right  to  have  the  opinion  of  the  court 
as  to  the  law  upon  a  given  state  of  facts,  though  they 
do  not  cover  the  whole  ground  of  the  case,  and  he  has  the 
right  to  have  an  instruction  in  his  own  language,  if 
clear,  intelligible  and  properly  propounding  the  law. 
Parsons  v.  Harrold,  46  W.  Va.  128. 

c.  Same. 

A  party  has  the  right  to  have  an  instruction  given  in 
his  own  language,  if  pertinent,  unambiguous  and  correct 
in  law.  Jordan  v.  Benwood,  42  W.  Va.  313.. 

6.  HOW  INSTRUCTIONS  TO  BE  TAKEN  AND  READ. 

a.     Author  of  instructions — Who  regarded  as. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.         9 

b.  What  not  necessary  to  insert  in. 

c.  How  construed — Stating  the  law  correctly. 

a.  Author  of  instructions — Who  regarded  as. 

All  instructions  given  are  instructions  of  the  court, 
regardless  of  who  requests  them,  and  are  to  be  considered 
together.  State  v.  Cottrcll,  52  W.  Va.  363. 

b.  What  not  necessary  to  insert  in. 

The  instructions  given  to  the  jury  must  be  taken  to- 
gether; and  it  is  not  necessary  to  insert  in  each  separate 
instruction  all  the  exceptions,  limitations  and  conditions 
which  are  inserted  in  the  instructions  as  a  whole.  State 
v.  Dodds,  54  W.  Va.  289. 

c.  How  construed — Stating  the  law  correctly. 
Instructions  to  the  jury  must  be  taken  and  read  as  a 

whole,  and  if,  upon  being  so  read  and  construed,  they 
state  the  law  correctly,  and  do  not  misstate  it  in  any  par- 
ticular, and  no  proper  instruction,  asked  for  has  been 
refused,  the  verdict  will  not  be  disturbed  on  the  ground 
that  additional  proper  instructions  could  have  been  given, 
or  that  some  particular  instruction,  standing  alone,  might 
tend  to  mislead  the  jury.  State  v.  Kellison,  56  W.  Va. 
691. 

7      RELEVANCY  OF  INSTRUCTIONS. 

a.  Relevant  instructions  defined. 

b.  Who  to  determine  as  to  relevancy  of. 

c.  Misleading  instructions. 

d.  Instructions  not  justified  by  the  evidence. 

e.  Instructions  not  applicable  to  the  evidence. 


10      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

f.  Instructions  not  adapted  to  nor  based  upon  the 

evidence. 

g.  Failure  to  refer  to  the  evidence. 

h.     Correct  abstract  propositions  of  law. 

i.     Directing  enquiries  as  to  facts  not  material. 

a.  Relevant  Instructions  defined. 

An  instruction  should  not  be  given  unless  relevant,  and 
it  is  not  relevant  unless  there  was  evidence  tending  to 
prove  the  facts,  on  which  the  instruction  is  based.  Kerr 
v.  Lunsford,  31  W.  Va.  663. 

b.  Who  to  determine  as  to  relevancy  of. 

It  is  for  the  court  to  determine  whether  there  is  evidence 
to  render  an  instruction  relevant.  An  instruction  cannot 
be  given  and  its  consideration  by  the  jury  made  to  depend 
upon  whether  the  jury  find  that  there  is,  or  is  not  such 
evidence.  Rowan  &  Co.  v.  Hull,  55  W.  Va.  336. 

c.  Misleading  instructions. 

An  instruction  must  be  relevant  to  the  evidence  in  the 
case;  if  it  is  not  and  is  calculated  to  mislead  the  jury, 
it  is  error  to  give  it.  State  v.  Greer,  22  W.  Va.  801. 

d.  Instructions  not  justified  by  the  evidence. 

It  is  not  error  to  refuse  instructions  not  justified  by  the 
evidence.  State  v.  Davis,  52  W.  Va.  224. 

e.  Instructions  not  applicable  to  the  evidence. 

It  is  not  error  for  the  court  to  refuse  to  give  an  instruc- 
tion when  it  is  irrelevant,  or  not  applicable  to  the  evi- 
dence. Campbell  v.  Hughes,  12  W.  Va.  184. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.        H 

f.  Instructions  not  adapted  to  nor  based  upon  the  evi- 

dence. 

It  is  not  error  to  refuse  an  instruction  not  especially 
adapted  to  nor  based  upon  the  facts  of  the  case,  which  the 
evidence  fairly  tends  to  prove.  State  v.  Hertzog,  55.  W. 
Va.  75. 

g.  Failure  to  refer  to  the  evidence. 

It  is  essential  to  maintain  the  distinction  between  jurid- 
ical and  moral  truth,  and  it  is  error  to  give  an  instruc- 
tion in  which  there  is  no  reference  to  the  evidence  in  the 
case. 

The  jury  can  found  their  belief  upon  nothing  but  the 
evidence,  and  instructions  ought  not  to  be  so  drawn  as  to 
leave  it  open  to  the  jury  to  base  it  upon  anything  else. 
State  v.  Sheppard,  49  W.  Va.  585,  606. 

h.     Correct  abstract  propositions  of  law. 

A  court  ought  not  to  grant  an  instruction  irrelevant  to 
the  case,  though  as  a  proposition  of  law  it  may,  in  the  ab- 
stract, be  right.  State  v.  Thompson,  21  W.  Va.  742. 

i.    Directing  enquiries  as  to  facts  not  material. 

It  is  proper  for  the  trial-court  to  refuse  instructions  so 
framed  as  to  direct  enquiries  by  the  jury  as  to  facts  not 
material  or  relevant  to  the  issue,  as  their  tendency  is  to 
mislead  and  confuse  the  jury.  Werner  v.  Calhoun,  55  W 
Va.  247. 

8.      INCOMPLETE   INSTRUCTIONS. 

a.  Correcting  or  curing  defective  instructions. 

b.  Withdrawal  of  bad  instructions. 


12      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

c.  Giving  other  proper  instructions. 

d.  Same. 

a.  Correcting  or  curing  defective  instructions. 

The  general  rule  is  that  the  court  may  cure  errors  in  its 
instructions  by  withdrawing,  explaining  or  correcting 
them.  When  a  material  instruction  is  given,  that  is 
erroneous,  it  should  be  effectively  withdrawn.  Osborne  &. 
Co.  \.  Francis,  38  W.  Va.  319. 

b.  Withdrawal  of  bad  instructions. 

A  bad  instruction  is  not  cured  by  a  good  instruction, 
though  they  be  given  on  the  motion  of  adverse  litigants. 
The  bad  instruction  should  be  withdrawn.  McKelvey  v. 
Railway  Co.  35  W.  Va.  501. 

c.  Giving  other  proper  instructions. 

When  an  instruction  is  incomplete  in  not  going  far 
enough  to  put  the  law  upon  its  subject,  but  other  instruc- 
tions do  state  the  law  omitted,  and  taken  together  they 
properly  state  the  law  upon  the  subject,  no  error  can  be 
based  on  the  defect  of  such  instruction  to  reverse  the  judg- 
ment, as  the  other  instruction  cures  the  defect  in  it.  State 
v.  Cottrell,  52  W.  Va.  363. 

d.  Same. 

When  an  instruction  given  is  incomplete,  but  states  the 
law  correctly  as  far  as  it  goes,  and  the  omitted  part  is  sup- 
plied by  other  instructions  given,  such  omission  is  not 
error.  State  v.  Prater,  52  W.  Va.  133. 

9.       MODIFICATION    OP    INSTRUCTIONS. 

a.     Instructions  properly  drawn  and  requested. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.       13 

b.  Instructions  correctly  propounding  the  law. 

c.  Proper  instructions  nullified  by   improper  in- 

structions. 

d.  Same — Right  of  party  affected,  to  benefit  of  ex- 

ceptions. 

e.  Modification  of  improper  instructions — Giving 

other  instructions. 

f.  Failure  to  modify  instructions. 

g.  Explaining  the  meaning  of  instructions. 

h.     Harmless  modification  of  proper  instructions. 

a.  Instructions  properly  drawn  and  requested. 

When  an  instruction  is  properly  drawn  and  requested, 
the  court  must  give  it,  without  modification,  either  by  an 
interpolation  in  that  instruction,  or  by  giving  another, 
having  the  effect  of  such  modification.  Ward  v.  Brown, 
53  W.  Va.  255. 

b.  Instructions  correctly  propounding  the  law. 
Although  an  instruction  propounds  the  law  correctly, 

and  the  court  modifies  it,  the  judgment  will  not  be  re- 
versed for  that  reason,  unless  the  modification  was  to  the 
prejudice  of  the  exceptor.  Tompkins  v.  Kanawha  Board, 
21  W.  Va.  224. 

c.  Proper  instructions  nullifiied  by  improper  instruc- 

tions. 

When  a  proper  instruction  is  asked  and  given,  it  is 
error  to  give  another  improper  instruction  which  modifies 
it  and  nullifies  its  effect  or  obscures  its  meaning.  Ward 
v.  Brown,  53  W.  Va.  228, 

d.  Same — Right  of  party  affected,  to  benefit  of  excep- 

tions. 
When  the  court  gives  erroneous  instructions  at  the  in- 


14      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

stance  of  one  party,  and  refuses  a  proper  one  asked  for 
by  the  other  party,  arad  afterwards  gives,  at  the  instance 
of  the  second  party  instructions  embodying  the  erroneous 
propositions  contained  in  the  instructions  given  for  the 
first  party,  the  action  of  the  court  in  respect  to  the  in- 
instructions  of  the  second  party  is  tantamount  to  an  er- 
roneous modification  of  the  second  party's  proper  in- 
struction, and  he  is  not  estopped  from  complaining  of  the 
action  of  the  court.  State  v.  Pine,  56  W.  Va.  1. 

e.  Modification  of  improper  instructions  —  Giving  other 

instructions. 

If  an  instruction  asked  does  not  correctly  expound  the 
law  the  court,  as  a  general  rule,  may  refuse  to  give  it,  and 
it  is  not  bound  to  modify  it,  or  give  another  instruction 
in  its  place.  Gas  Co.  v.  Wheeling,  8  W.  Va.  323. 

f.  Failure  to  modify  instructions. 

If  it  plainly  appear  that  a  party  could  not  have  been 
injured  by  the  modification  of  an  instruction  asked,  even 
though  the  modification  was  unnecessary,  the  failure  to 
give  such  instruction  without  such  modification  is  not 
sufficient  cause  for  reversal  of  the  judgment.  Turner  v. 
Co.,  40  W.  Va.  676. 


g.    Explaining  the  meaning  of  instructions. 

\Yhere  an  instruction  is  ambigous  and  equivocal,  and 
would  not  readily  be  comprehended  by  the  average  jury- 
man, the  court  should  refuse  to  grant  it,  if  by  granting 
it  the  jury  might  be  misled  ;  but,  if  it  be  correct  upon  one 
construction  of  it,  the  court  should  properly  modify  it  so 
as  to  remove  the  ambiguity,  and  make  it  clearly  intel- 
ligible to  the  jury,  and,  after  such  modification,  to  grant 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.        15 

it,  or  the  court  should  grant  it,  with  an  explanation  giving 
it  the  meaning  which  will  make  it  proper.  Carrico  v.  Rail- 
way Co.,  35  W.  Va.  391. 

h.     Harmless  modification  of  proper  instructions. 

Although  an  instruction  propounds  the  law  correctly, 
and  the  court  modifies  it,  the  judgment  will  not  be  re- 
versed for  that  reason,  unless  the  modification  was  to  the 
prejudice  of  the  exceptor.  Tompkins  v.  Board,  21  W.  Va. 
224. 

10.  SUBMITTING    QUESTIONS    OP    LAW    ONLY. 

a.  Submitting  questions  of  law  to  juries  prohibited. 

b.  Duty  of  trial  courts  when  the  law  is  plainly 

for  one  of  the  parties. 

a.  Submitting  questions  of  law  to  juries  prohibited. 
An  instruction  must  mot  submit  a  question  of  law  to 

the  jury.    Tracewell  v.  County  Court,  58  W.  Va.  -  — . 

b.  Duty  of  trial  court  when  the  law  is  plainly  for  one 

of  the  parties. 

When  the  law  as  applied  to  the  facts  in  evidence  is 
plainly  for  one  of  the  parties  the  court  should  instruct  the 
jury  to  return  a  verdict  accordingly.  Porter  v.  Mack,  50 
W.  Va.  583. 

11.  ASSUMPTION  OP  FACTS. 

a.  Instructions  must  be  based  upon  facts  proven. 

b.  Correct  assumption  of  facts. 

c.  Facts  proven  beyond  controversy. 


16      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

d.  Facts  admitted,  or  sustained  by  the  evidence. 

e.  State  of  facts  unsupported  by  evidence. 

f.  Important  and  material  facts  not  conceded  as 

true. 

g.  State  of  facts  other  than  exist  in  case. 

h.    Facts  not  proven — Weight  of  evidence, 
i.     Intimation  of  opinion  of  court  as  to  facts. 

a.  Instructions  must  be  based  upon  facts  proven. 
Instructions  which  are  not  based  upon,  or  applicable  to 

the  facts  proven  in  the  case,  should  not  be  given  to  the 
jury,  although  they  may  be  correct  as  abstract  principles 
of  law.  Coffman  v.  Hedrick,  32  W.  Va.  120. 

b.  Correct  assumption  of  facts. 

Where  there  is  an  assumption  of  a  fact  in  an  instruction 
given  to  the  jury,  and  the  evidence  which  is  certified  as  to 
the  correctness  of  the  assumption  is  so  full  and  uncontra- 
dicted  as  to  necessitate  the  inference  that  it  was  undis- 
puted or  tacitly  admitted,  the  judgment  will  not  be  re- 
versed because  the  fact  was  so  assumed  to  be  true.  Sheff 
v.  City  of  Huntington,  16  W.  Va.  307. 

c.  Facts  proven  beyond  controversy. 

An  instruction  ought  never  to  assume  as  proven  the 
facts  which  it  supposes,  but  ought  to  be  hypothetical ;  yet, 
if  such  an  instruction  has  been  given,  and  the  appellate 
court  sees  from  the  record  that  those  facts  were  proven 
beyond  controversy,  and  were  conceded  or  tacitly  con- 
ceded, and  .not  a  subject  of  controversy  on  the  trial,  such 
improper  instruction  will  not  be  ground  for  reversal,  if 
correct  in  law.  Cameo  v.  Railway  Co.,  39  W.  Va.  87. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.        17 

d.  Facts  admitted,  or  sustained  by  the  evidence. 

A  judgment  will  be  reversed  where  the  court  below,  in 
an  instruction  excepted  to,  has  assumed  a  material  fact, 
unless  the  record  shows  affirmatively  that  the  fact  so  as- 
sumed was  admitted  expressly  or  tacitly,  or  that  it  was 
so  fully  sustained  by  uncontradicted  evidence  as  to  neces- 
sitate the  inference  that  it  was  an  undisputed  fact.  State 
v.  Lowe,  21  W.  Va.  782. 

e.  State  of  facts  unsupported  by  evidence. 

An  instruction  based  upon  a  state  of  facts  wholly  un- 
supported by  the  evidence  adduced  upon  the  trial  is  prop- 
erly rejected,  although  it  may  correctly  propound  the  law 
upon  the  assumed  statement  of  facts.  State  v.  Poindexter, 
23  W.  Va.  806. 

f.  Important  and  material  facts  not  conceded  as  true. 
An  instruction  which  assumes  an  important  and  ma- 
terial fact  as  true,  which  is  not  conceded  in  the  case,  and 
which  the  evidence  does  not  tend  to  prove,  should  not 
be  given  to  the  jury.    State  v.  Dickey,  46  W.  Va.  319. 

g.  State  of  facts  other  than  exist  in  case. 

If  the  evidence  tends  to  prove  one  state  of  facts,  and 
the  instruction  prayed  supposes  and  is  predicated  upon 
an  opposite  state  of  facts,  the  existence  of  which  there  Is 
no  evidence  tending  to  prove,  it  is  not  generally  error  for 
the  court  to  refuse  the  instruction.  Moore  v.  Douglass, 
14  W.  Va.  708. 

h.     Facts  not  proven — Weight  of  evidence. 

An  instruction  should  not  assume  a  fact  as  not  proven 
when  there  is  any  evidence  tending  in  an  appreciable, 


18      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

though  slight  degree,  to  establish  it.  An  instruction 
should  not  pass  on  the  weight  of  evidence.  Bently  v.  In- 
surance Co.,  40  W.  Va,  730. 

i.    Intimations  of  opinions  of  the  court  as  to  facts. 

Where  an  instruction  assumes  certain  things  as  facts, 
and  is  in  such  shape  as  to  intimate  to  the  jury  what  the 
judge  believes  the  evidence  to  be  touching  such  facts  it 
is  error  to  give  such  instruction,  although  it  may  pro- 
pound the  law  correctly.  State  v.  Allen,  45  W.  Va.  46. 

12.       MIXED  QUESTIONS  OF  LAW  AND  FACT. 

a.  Whether  questions  of  law  or  fact. 

b.  Same — Material  allegations. 

c.  Separating  the  facts  from  the  law. 

a.  Whether  questions  of  law  or  fact. 

Where  there  is  no  controversy  as  to  the  facts  or  in- 
ferences that  may  be  fairly  drawn  from  them,  the  ques- 
tion to  be  determined  is  one  of  law  for  the  court.  Where 
such  is  not  the  case,  the  question  is  for  the  jury.  Thomas 
v.  Electrical  Co.,  54  W.  Va.  395. 

b.  Same — Material  allegations. 

It  is  not  proper  to  instruct  the  jury  that  if  they  be- 
lieve from  the  evidence  that  the  plaintiff  has  proved  the 
material  allegations  of  his  declaration  they  should  find 
for  the  plaintiff.  What  is  a  material  allegation  is  a  ques- 
tion of  law  for  the  court.  Dicken  v.  Salt  Co.,  41  W.  Va. 
512. 

c.  Separating  the  facts  from  the  law. 

When  in  the  statement  of  an  instruction  asked  for,  there 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.       19 

is  such  a  mixture  of  facts  with  the  law,  which  necessarily 
would  demand  the  opinion  of  the  court  on  both,  so  as  to 
necessitate  the  court  to  either  refuse  the  instruction,  or 
to  discriminate  between  the  facts  and  the  law,  which  it  is 
not  bound  to,  it  is  not  error  to  refuse  the  instruction. 
Patton  v.  Navigation  Co.,  13  W.  Va.  261. 

13.  ABSTRACT  QUESTIONS. 

a.  Courts  not  required  to  instruct  as  to. 

b.  Action  of  appellate  court  as  to  erroneous  in- 

struction on. 

a.  Courts  not  required  to  instruct  as  to. 

The  court  is  not  bound  to  give  an  instruction  upon  a 
mere  abstract  question,  and  if  it  does  so,  under  circum- 
stances calculated  to  mislead  the  jury,  such  instruction 
will  be  error,  for  which  the  judgment  will  be  reversed. 
State  v.  Allen,  45  W.  Va.  75. 

b.  Action  of  appellate  court  as  to  erroneous  instructions 

on. 

If  an  instruction  given  by  a  court  on  an  abstract  ques- 
tion is  erroneous,  the  appellate  court  will  not  reverse  the 
judgment  of  the  court  below  on  that  account,  if  it  appears 
that  no  injury  could  have  resulted  to  the  plaintiff  in  error 
from  such  erroneous  instruction ;  but  if  such  erroneous  in- 
struction was  calculated  to  mislead  the  jury  to  the  injury 
of  the  plaintiff  in  error,  the  appellate  court  will  reverse 
the  judgment,  and  award  a  new  trial  on  that  account. 
Sheppard  v.  Insurance  Co.,  21  W.  Va.  370. 

14.  ABSTRACT  OR  ERRONEOUS  PROPOSITIONS  OF  LAW. 

a.     Misleading  instructions  on. 


20      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

b.  Law  quoted  from  text  books. 

c.  Asserting  erroneous  propositions. 

d.  Failure  to  connect  abstract  propositions  with 

the  evidence. 

a.  Misleading  instructions. 

It  is  error  to  give  an  abstract  proposition,  as  an  in- 
struction to  a  jury,  which  is  calculated  to  mislead  them, 
Clailorne  v.  Railway  Co.,  46  W.  Va.  363. 

b.  Law  quoted  from  text  books. 

It  is  not  improper  for  the  court  to  refuse  to  give  to  the 
jury,  as  an  instruction  at  the  request  of  the  accused,  ab- 
stract propositions  of  law,  quoted  from  a  text  book,  and 
not  indicating  to  what  class  of  evidence  in  the  case  it  is 
applicable.  State  v.  Prater,  52  W.  Va.  133. 

c.  Asserting  erroneous  propositions. 

Where  an  instruction  asserts  a  proposition  apparently 
erroenous,  and  is  given,  and  excepted  to,  the  judgment 
should  be  reversed,  though  it  is  not  shown,  whether  in 
fact,  the  instruction  prejudiced  the  appellant  or  not.  Din- 
gcss  v.  Branson,  14  W.  Va.  100. 

d.  Failure  to  connect  abstract  propositions  with  the  evi- 

dence. 

An  instruction  embodying  an  abstract  proposition  of 
law,  without  in  any  way  connecting  it  with  the  evidence  or 
indicating  what  facts  the  jury  must  find  from  the  evi- 
dence, in  order  to  make  it  applicable  to  the  case,  ought 
not  to  be  given;  and  if  the  court  can  see  that  such  an 
instruction  has  confused  or  mislead  the  jury,  the  judg- 
ment resulting  from  the  verdict  will  be  reversed.  Parker 
v.  Building  Association,  55  W.  Va.  134. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.       21 

15.  HYPOTHETICAL   INSTRUCTIONS. 

a.  Failure  of  evidence  to  establish  facts. 

b.  Omission  of  material  facts. 

c.  Omission  of  reference  to  facts. 

a.  Failure  of  evidence  to  establish  facts. 

It  is  error  to  instruct  the  jury  hypothetically,  upon  a 
state  of  facts  where  there  is  no  evidence  in  the  case  tend- 
ing to  prove  such  facts.  Oliver  v.  Railroad  Co.,  42  W.  Va. 
703. 

b.  Omission  of  material  facts. 

When  the  court  instructs  the  jury  that  if  they  believe 
from  the  evidence  certain  hypothetical  facts  mentioned  in 
the  instructions,  they  must  find  for  the  party,  plaintiff 
or  defendant,  as  the  case  may  be,  but  omits  from  such 
statement  of  facts  a  material  fact,  which  being  believed 
from  the  evidence  would  require  a  different  verdict,  such 
instruction  is  erroneous,  and  if  excepted  to  and  not  cured, 
is  ground  for  reversal.  Woodell  v.  Improvement  Co.,  38 
W.  Ya.  23. 

c.  Omission  of  reference  to  facts. 

A  hypothetical  instruction  directing  a  finding  in  favor  of 
a  party  which  omits  any  reference  to  the  facts  is  erroneous, 
nor  can  such  error  be  cured  by  other  instructions  given  on 
behalf  of  either  party.  McVey  v.  St.  Glair  Co.,  49  W.  Va 
412. 

16.  VAGUE    OR    OBSCURE    INSTRUCTIONS. 

a.    Doubt  as  to  meaning  intended. 


22      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

b.  Instructions  susceptible  of  two  constructions. 

c.  Same — Rule  of  appellate  court  as  to. 

d.  Propositions  at  variance  with  the  law  applicable 

to  the  evidence. 

e.  Inconsistent  legal  propositions. 

a.  Doubt  as  to  meaning  intended. 

When  an  instruction  asked  for  is  so  imperfectly  ex- 
pressed that  its  true  meaning  is  not  discernible,  and  would 
tend  to  mislead  the  jury,  it  should  be  refused.  Patton  v. 
Navigation  Co.,  13  W.  Va.  261. 

b.  Instructions  susceptible  of  two  constructions. 

An  instruction  which  is  susceptible  of  two  construc- 
tions, one  of  which  is  erroneous  and  may  mislead  the  jury, 
should  not  be  given.  Gas  Co.  v.  Wheeling,  8  W.  Va.  323. 

c.  Same — Rule  of  appellate  court  as  to. 

Where,  on  critical  examination,  an  instruction  is  sus- 
ceptible of  more  than  one  construction  or  meaning,  this 
court  will  adopt  that  which,  in  the  exercise  of  ordinary 
good  sense,  was  evidently  given  to  it  by  the  trial-court  and 
jury.  Bank  v.  Napier,  41  W.  Va.  481. 

d.  Propositions  at  variance  with  the  law  applicable  to 

the  evidence. 

The  giving  of  an  instruction  which,  by  reason  of  its  sus- 
ceptibility of  such  interpretations  as  will  make  it  express 
a  proposition  at  variance  with  the  law  applicable  to  the 
evidence  which  forms  its  subject  matter,  is  erroneous  and 
prejudicial,  although  another  interpretation  of  it  in 
harmony  with  the  law  is  not  precluded  by  its  terms.  Har- 
mon v.  Maddy  Bros.,  57  W.  Va.  66. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.       23 

e.     Inconsistent  legal  propositions. 

Instructions  must  not  be  obscure,  or  vague  and  indefi- 
nite, or  put  inconsistent  legal  propositions,  or  proposi- 
tions which  no  evidence  fairly  presents,  or  be  inconsistent 
with  others  in  the  case,  or  present  a  certain  hypothesis  and 
make  the  case  turn  wholly  on  it,  disregarding  another  hy- 
pothesis fairly  arising  on  the  evidence.  Industrial  Co.  v. 
Schultz,  43  W.  Va.  471. 

17.       CONFUSING  OR  MISLEADING  INSTRUCTIONS. 

a.  Doubt  as  to  meaning  intended. 

b.  Unintelligible  instructions. 

c.  Misleading  instructions. 

d.  Instructions  not  justified  by  the  evidence. 

e.  Instructions  not  fully  stating  the  law. 

f.  Conflicting  instructions. 

g.  Necessity  for  evidence  tending  to  prove  the  case, 
h.  Instructions  containing  paragraphs  from  books. 
i.  Instructions   raising   immaterial   or   irrelevant 

issues. 

a.  Doubt  as  to  meaning  intended. 

An  instruction  which  is  confused  in  its  language  and 
makes  it  doubtful  what  is  intended  thereby,  and  is  calcu- 
lated to  mislead  the  jury,  should  not  be  given.  State  v. 
Cain,  20  W.  Va.  681. 

b.  Unintelligible  instructions. 

An  instruction  which  is  confused  in  its  language,  contra- 
dictory in  its  terms  and  unintelligible,  is  calculated  to 
mislead  the  jury  and  should  not  be  given.  State  v.  Robin- 
son, 20  W.  Va.  714. 


24      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

c.  Misleading  instructions. 

It  is  not  error  to  refuse  a  misleading  instruction.  Stew- 
art v.  Doak,  58  W.  Va. . 

d.  Instructions  not  justified  by  the  evidence. 
Instructions  not  justified  by  the  evidence  and  tending 

to  mislead  the  jury  should  not  be  given.    State  v.  Manns, 
48  W.  Va.  480. 

e.  Instructions  not  fully  stating  the  law. 
Instructions  which  do  not  fully  state  the  law  on  a  given 

point  are  erroneous  and  'should  not  be  given,  as  they  tend 
to  mislead  the  jury.    State  v.  Manns,  48  W.  Va.  480. 

f.  Conflicting  instructions. 

Conflicting  instructions  which  are  calculated  to  confuse 
and  mislead  the  jury  should  not  be  given.  Reese  v.  Rail- 
road Co..  42  W.  Va.  333. 

g.  Necessity  for  evidence  tending  to  prove  the  case. 

An  instruction  prayed  should  be  pertinent,  and  there 
should  generally  be  evidence  in  the  case  tending  to  prove 
the  case  the  instruction  supposes  to  exist,  otherwise  the 
instruction  should  be  rejected  as  tending  to  confuse  and 
mislead  the  jury,  as  well  as  for  not  being  pertinent.  Moore 
v.  Douglass,  14  W.  Va.  708. 

h.     Instructions  containing  paragraphs  from  books. 

The  court  should  not  give  as  an  instruction  a  paragraph 
from  a  book  containing  matters  hard  to  be  understood  and 
calculated  to  confuse  and  mislead.  Nicholas  v.  Kershner, 
20  W.  Va.  252. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.       25 

i.    Instructions  raising  immaterial  or  irrelevant  issues. 

It  is  not  error  to  refuse  instructions  the  giving  of 
which  would  raise  immaterial  or  irrelevant  issues  and 
thereby  tend  to  mislead  and  confuse  the  jury.  State  v. 
Clark.  51  W.  Va.  458. 

18.      INCONSISTENT    OR    CONTRADICTORY     INSTRUCTIONS. 

a.  Inconsistent  instructions — Reasons  for  refusal 

of. 

b.  Same — Failure  of  good  instructions  to  cure  bad 

instructions. 

c.  Contradictory   instructions  —  Reversal   because 

of. 

d.  Conflicting  theories. 

a.  Inconsistent  instructions — Reasons  for  refusal  of. 

It  is  error  to  give  inconsistent  instructions  to  the  jury, 
for  it  is  calculated  to  confuse  and  mislead  them ;  it  leaves 
the  jury  at  liberty  to  decide  according  to  the  correct  rule 
of  law  or  the  contrary,  and  renders  it  impossible  for  the 
court  to  determine  upon  what  legal  principle  the  ver- 
dict was  founded.  McMechen  v.  McMechen,  17  W.  Va.  684. 

b.  Same — Failure  of  good  instructions  to  cure  bad  in- 

structions. 

Instructions  must  not  be  inconsistent  with  each  other. 
A  bad  instruction  is  not  cured  by  a  good  one,  though  they 
be  given  on  the  motion  of  adverse  litigants.  Ward  v.  Ward, 
47  W.  Va.  766. 

c.  Contradictory  instructions — Reversal  because  of. 
Where  instructions  given  in  behalf  of  one  party  are  er- 


26      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

roneous,  and  contradictory  to  instructions  given  in  behalf 
of  the  other  party,  judgment  in  favor  of  the  party  for 
whom  the  erroneous  instructions  were  given,  will  be  re- 
versed. Barnctt  v.  Lumber  Co.,  43  W.  Va.  441. 

d.     Conflicting  theories. 

An  instruction  stating  the  law  applicable  to  one  theory 
of  the  case,  and  substantially  covering  all  the  facts  upon 
which  the  correctness  of  such  theory  depends,  is  proper, 
if  there  is  any  evidence  in  the  case,  tending  to  prove  such 
facts,  although  it  ignores  other  facts  put  in  issue  as  part 
of  another  and  different  theory  which,  if  true,  leads  to  a 
different  conclusion  and  result,  when  another  instruc- 
tion has  been  given  in  the  case,  covering  such  conflicting 
theory.  Rlioades  v.  Railway  Co.,  49  W.  Va.  495. 

19.  CONJECTURAL    INSTRUCTIONS. 

a.     Evidence  tending  to  prove  certain  facts. 

It  is  error  to  instruct  the  jury  upon  a  conjectural  state 
of  facts,  upon  which  no  evidence  has  been  offered;  but  if 
the  evidence  in  the  case  tends  to  prove  certain  facts,  it  is 
proper  to  give  instructions  to  the  jury  based  thereon. 
McMechen  \.  McMechen,  17  W.  Ya.  685. 

20.  SPECIFIC    INSTRUCTIONS. 

a.     Necessity  for  asking  and  giving. 

A  court,  though  asked,  is  not  bound  to  instruct  a  jury 
generally  as  to  the  law  of  the  case.  Instructions  as  to  the 
specific  law  points  ought  to  be  asked.  A  court  may,  with- 
out request,  if  it  thinks  the  interests  of  justice  and  a  fair 
trial  call  for  it,  instruct  the  jury  in  matters  of  law,  the 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.       27 

instruction  being  sound  in  law  and  relevant  to  the  evi- 
dence; but  it  is  not  bound  to  do  so  unless  asked;  but  if 
asked  to  give  such  proper  specific  instructions,  it  must  do 
so.  State  v.  CoWs,  40  W.  Va  718. 

21.  SUPPOSITIVE    INSTRUCTOINS. 

a.  Evidence  tending  to  prove  case  supposed. 

b.  Weak  evidence. 

a.  Evidence  tending  to  prove  case  supposed. 

If  there  is  any  evidence  before  the  jury  tending  to 
prove  a  case  supposed  in  an  instruction  asked  for,  and  the 
instruction  propounds  the  law  correctly,  it  should  be 
given.  State  v.  Betsall,  11  W.  Va.  729. 

b.  Weak  evidence. 

If  an  instruction  has  been  given,  this  court  will  not 
reverse  a  judgment  because  of  it,  if  there  is  any  evidence 
tending  to  prove  the  fact  it  supposes,  though,  in  the  opin- 
ion of  the  court,  the  evidence  be  very  weak.  Garrico  v. 
Railway  Co.,  39  W.  Va.  87. 

22.  NUMEROUS      INSTRUCTIONS — REPEATING      INSTRUC- 

TIONS. 

a.  Kefusal  of  instructions  when  others  given  on 
same  point. 

b.  Repeating  instructions. 

c.  Instructions    to    same    legal    effect    as    others 

given. 

d.  Same — Clearly  laying  down  the  law. 

e.  Phases  of  case  not  presented  in  other  instruc- 

tions 


28      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

f.  Enquiry  as  to  a  particular  matter. 

g.  Correcting  a  faulty  instruction. 

a.  Refusal  of  instructions  when  others  are  given  on  same 

point. 

A  court  need  not — ought  not  to — give  innumerable  in- 
structions. They  produce  confusion  of  mind  in  the  jury. 
Even  expert  lawyers  and  judges  are  scarcely  able  to  dis- 
criminate between  numerous  instructions,  when  properly 
given.  Good  cases  are  often  lost  in  both  the  circuit  and 
appellate  courts  by  instructions  better  out  of  them. 
When  instructions  given  ,no  matter  on  which  side,  fairly 
and  clearly  lay  down  the  law  of  the  case,  it  is  not  error 
to  refuse  others  on  the  same  point,  though  good.  An  in- 
struction need  not  be  repeated,  if  substantially  already 
given.  State  v.  Bingham,  42  W.  Va.  239. 

b.  Repeating  instructions. 

Where  instructions  given  clearly  and  fairly  lay  down 
the  law  of  the  case,  it  is  not  error  to  refuse  other  in- 
structions on  the  same  subject.  The  court  need  not  re- 
peat instructions  already  substantially  given.  State  v. 
Bingham,  42  W.  Va,  234. 

c.  Instructions  to  same  legal  effect  as  others  given. 
The  trial  court,  in  its  sound  discretion,  may  refuse  to 

give  numerous  instructions  which  are  to  the  same  legal 
effect,  and  only  vary  as  to  the  position  of  the  words, 
clauses  and  sentences  used  in  their  construction.  It  may 
also  decline  to  give  numerous  instructions  as  to  facts 
virtually  taken  from  the  consideration  of  the  jury  by 
other  instructions  given.  Davidson  v.  Railway  Co.,  41  W. 
Va.  408. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.       29 

d.  Same — Clearly  laying  down  the  law. 

It  is  again  held  that  where  instructions  clearly  and 
fairly  lay  down  the  law  upon  a  subject,  it  is  not  error  to 
refuse  others  to  the  same  effect.  The  court  need  not 
repeat  instructions  already  substantially  given.  State  v. 
Cottrill,  52  W.  Va.  363. 

e.  Phases  of  case  not  presented  in  other  instructions. 
Instructions  asked  by  the  accused  which  properly  pro- 
pound the  law,  are  justified  by  the  evidence,  and  present 
to  the  jury  a  phase  of  the  case  not  presented  in  other 
instructions,  should  be  given,  and  it  is  reversible  error  to 
refuse  them.     State  v.  Kerns,  47  W.  Va.  266. 

f.  Enquiry  as  to  a  particular  matter. 

While  two  special  questions  covering  the  same  enquiry 
should  not  be  put  to  a  jury,  yet  if  one  covering  some  mat- 
ter of  another  is  so  drawn  as  to  more  definitely  and 
pointedly  enquire  as  to  a  particular  matter  controlling  the 
case,  it  should  be  given.  Veith  v.  Salt  Co.,  51  W.  Va.  96. 

g.  Correcting  a  faulty  instruction. 

It  is  not  error  to  refuse  to  correct  a  faulty  instruction, 
or  to  refuse  to  give  the  same  instruction  twice.  Shrews- 
bury v.  Tufts,  41  W.  Va.  213. 

23.   REFUSAL  OF  PROPER  INSTRUCTIONS. 

a.  Effect  of  refusal  on  the  verdict. 

b.  Giving  other  instructions  to  same  effect. 

c.  Oral  instructions — Refusal   of   correct   written 

instructions. 

a.     Effect  of  refusal  on  the  verdict. 

When  a  correct  instruction  is  refused,  the  verdict  will 


30      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

be  set  aside,  unless  the  appellate  court  can  see  from  the 
record  that,  even  under  the  instruction,  a  different  ver- 
dict could  not  rightly  have  been  found.  Ward  v.  Brown, 
53  W.  Va.  230. 

b.  Giving  other  instructions  to  same  effect. 

Though  proper  instructions  may  be  refused,  yet  if  other 
instructions  are  given  covering  the  same  questions  and  to 
the  same  effect  such  refusal  is  not  reversible  error. 
Arthur  v.  City  of  Charleston,  51  W.  Va.  132. 

c.  Oral  instructions — Refusal  of  correct  written  instruc- 

tions. 

The  refusal  of  a  correct  written  instruction  will  not 
call  for  a  new  trial  when  the  court  gives  an  oral  one  in 
lieu  of  it  on  the  same  subject,  and  it  does  not  appear  what 
the  oral  instruction  was  in  detail,  and  there  was  no  ob- 
jection or  exception  to  its  matter. 

The  better  practice  is  to  require  instructions  to  be  in 
writing;  but  the  mere  fact  that  an  instruction  is  oral  will 
not  reverse.  State  v.  Wood/row,  58  W.  Va.  — . 

24.      GIVING    IMPROPER  AND   REFUSING    PROPER   INSTRUC- 
TIONS. 

a.  When  reversal  not  had  because  of. 

b.  Different  hypotheses. 

c.  Instructions   presenting   defense. 

d.  Instructions  not  warranted  by  the  evidence. 

e.  Preponderance  of  evidence — Harmless  error. 

f.  Failure  to  correct  improper  instructions. 

a.     When  reversal  not  had  because  of. 

Tf  improper  instructions  are  given,  or  proper  ones  are 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.        31 

refused  on  the  trial,  the  judgment  will  be  reversed,  unless 
the  evidence  is  so  plainly  and  decidedly  in  favor  of  the 
finding  of  the  jury  that  the  giving  or  refusal  of  such  in- 
structions amount  to  merely  harmelss  error.  McVey  v. 
8t.  Clair  Co.,  49  W.  Va.  412. 

b.  Different  hypotheses. 

The  giving  of  instructions  predicated  upon  two  differ- 
ent hypotheses,  in  support  of  one  of  which  there  is  no 
evidence,  and  the  refusal  of  a  proper  instruction  embody- 
ing the  one  theory  which  the  evidence  tends  to  establish, 
is  prejudicial  error,  calling  for  a  new  trial.  State  v. 
Pine,  56  W.  Va.  1. 

c.  Instructions  presenting  defense. 

Instructions  asked  by  the  accused  presenting  his  de- 
fense, and  which  the  evidence,  in  any  degree,  tends  to 
support,  should  be  given.  State  v.  Manns,  48  W.  Va.  480. 

d.  Instructions  not  warranted  by  the  evidence. 

It  is  error  for  the  trial  court  to  give  instructions  which 
are  not  warranted  by  the  evidence.  State  v.  Cross,  42 
W.  Va.  253. 

e.  Preponderance  of  evidence — Harmless  error. 

On  consideration  of  the  whole  evidence,  as  required  by 
legislative  enactment,  if  it  appear  that  the  verdict  of  the 
jury  is  sustained  by  a  decided  preponderance  thereof,  this 
court  will  not  set  aside  such  verdict  and  grant  a  new  trial 
because  the  trial  court  may  have  given  improper  or  re- 
fused proper  instructions,  not  interferring  with  or  affect- 
ing the  preponderance  of  evidence,  for  such  erroneous 
rulings  must  be  deemed  to  be  harmless  error.  Bank  v. 
Napier,  41  W.  Va.  481. 


32      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

f.    Failure  to  correct  improper  instructions. 

As  a  general  rule  failure  by  the  trial-court  to  correct 
and  give  as  corrected,  an  improper  instruction  asked,  is 
not  error.  State  v.  Caddie,  35  W.  Va.  73. 

25.  PRESUMPTIONS  AS  TO   ERRONEOUS   INSTRUCTIONS. 

a.  When  presumptions  overcome. 

b.  Same — Harmless  instructions. 

a.  When  presumptions  overcome. 

Where  an  erroneous  instruction  has  been  given  to  the 
jury,  the  presumption  is  that  the  exceptor  has  been  preju- 
diced thereby,  and  the  judgment  will  be  reversed  for  such 
cause,  unless  it  clearly  appeal's  from  the  record,  that  the 
exceptor  could  not  have  been  so  prejudiced.  State  v. 
Douglass,  28  W.  Va.  298. 

b.  Same — Harmless  instructions. 

An  erroneous  instruction  on  a  material  point  is  pre- 
sumed to  be  to  the  prejudice  of  the  party  against  whom 
it  is  given,  and  will  cause  reversal,  unless  it  clearly  ap- 
pears from  the  record  that  it  was  harmless.  Osborne  & 
Co.  v.  Francis,  38  W.  Va.  312. 

26.  DISREGARDING   INSTRUCTIONS. 

a.  Necessity  for  following  instructions. 

b.  Law  applicable  to  facts. 

c.  Erroneous  instructions. 

a.     Necessity  for  following  instructions. 

The  jury  is  not  the  judge  of  the  law,  contrary  to  the 
instructions  of  the  court,  but  must  follow  the  instruc- 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.        33 

tions  of  the  court  upon  the  law.     State  v.  Dickey,  48  W. 
Va.  325. 

b.  Law  applicable  to  facts. 

Where  instructions  given  by  the  court  properly  pro- 
pound the  law  applicable  to  the  facts  proven,  the  jury 
cannot  disregard  such  instructions;  and  if  they  do  so, 
their  verdict  will  be  set  aside.  Fisher  v.  Railroad  Co., 
42  W.  Va.  183. 

c.  Erroneous  instructions. 

A  new  trial  will  not  be  allowed  because  the  jury  disre- 
garded an  instruction  erroneous  in  law.  Watts  v.  Rail- 
road Co.,  39  W.  Va.  198. 

27.  AFFIDAVITS    OF    JURORS   AS    TO    UNDERSTANDING    IN- 

STRUCTIONS. 

a.     When  such  affidavit  not  to  be  read. 

The  affidavit  of  jurors  as  to  how  they  understood  the 
instructions  of  the  court,  and  that  in  accordance  with 
such  understanding  the  verdict  was  rendered,  will  not  be 
read  on  a  motion  to  set  verdict  aside.  Reynolds  v.  Tomp- 
kins,  23  W.  Va.  229. 

28.  HARMLESS  INSTRUCTIONS. 

a.  When  harmlessness  apparent. 

b.  Same — Presumption  as  to. 

c.  Necessity  for  apparent  harmlessness — Incorrect 

or  abstract  instructions. 

d.  Same — Giving  or  refusing  instructions. 

e.  When  a  different  verdict  could  not  have  been 

rightly  found. 


34      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

f.  Misinstructing  the  jury — Facts  shown   in   the 

record. 

g.  Matter  not  within  the  province  of  the  jury. 

h.     Sufficient  evidence  to  support  the  hypothesis  of 

instructions, 
i.     Giving  undue  importance  to  the  evidence. 

a.  When  hannlessness  apparent. 

When  the  court  can  clearly  see  affirmatively  that  the 
error  has  worked  no  harm  to  the  party  appealing,  it  will 
be  disregarded.  Osborne  &  Co.  v.  Francis,  38  W.  Va.  322. 

b.  Same — Presumption  as  to. 

An  erroreous  instruction  on  a  material  point  is  pre- 
sumed to  the  prejudice  of  the  party  appealing  against 
whom  it  is  given,  and  will  cause  reversal,  unless  it  clearly 
appears  from  the  record  that  it  was  harmless.  Ward  v. 
\Ynrd,  47  W.  Va.  766. 

c.  Necessity  for  apparent  hannlessness — Incorrect  or  ab- 

stract instructions. 

An  instruction  which  could  not  possibly  have  preju- 
diced the  part}*,  though  incorrect  or  abstract,  will  not  be 
ground  for  reversal ;  but  it  must  be  very  clear  that  it  could 
not  have  hurt  the  party  complaining  of  it.  Carrico  v. 
Railway  Co.,  39  W.  Va.  88. 

d.  Same — Giving  or  refusing  instructions. 

Error  in  giving  or  refusing  to  give  certain  instructions 
affords  no  ground  for  reversing  a  judgment,  when  it  is 
evident  that  the  party  complaining  could  not  have  been 
injured  thereby.  Ha  nun  in  v.  Hill.  52  W.  Va.  166. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.       35 

e.    When  a  different  verdict  could  not  have  been  rightly 

found. 

Whenever  a  correct  instruction  is  refused,  the  judg- 
ment will  be  reversed,  unless  the  appellate  court  can  see 
from  the  whole  record  that,  even  under  correct  instructions, 
a  different  verdict  could  not  have  been  rightly  found,  or 
unless  it  is  able  to  perceive  that  the  erroneous  ruling  of 
the  court  could  not  have  influenced  the  jury.  Davis  v. 
,  46  W.  Va.  6. 


f.  Misinstructing  the  jury  —  Facts  shown  in  the  record. 
The  court  will  not  reverse  a  judgment  merely  because 

the  trial  court  misinstructed  the  jury,  when  all  the  facts 
in  the  case  are  in  the  record,  and  it  appears  thereby  that 
the  plaintiff  in  error  could  not  have  been  injured  by  the 
misinstruction.  C  order  v.  Talbott,  14  W.  Va.  284. 

g.  Matter  not  within  the  province  of  the  jury. 
Where  it  is  proper  that  the  court,  and  not  the  jury,. 

should  pass  upon  a  matter  and  find  thereon,  but  a  jury 
finds  upon  it,  and  the  court  renders  judgment,  if  the 
judgment  is  the  same  that  the  court  should  have  rendered 
if  it  had  expressly  found  on  such  matter,  this  error  is 
harmless,  and  not  cause  for  reversal.  Miller  v.  White, 
46  W.  Va.  68. 

h.     Sufficient  evidence  to  support  hypothesis  of  instruc- 

tions. 

Where  there  is  sufficient  evidence  to  support  the 
hypothesis  of  an  instruction,  and  it  correctly  propounds 
the  law,  and  is  otherwise  unobjectionable,  it  is  error  to 
refuse  it;  but  if  this  court  sees  plainly  from  the  record 
that  the  party  offering  the  instruction  has  not  been  in- 


36      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

jured  by  its  rejection,  the  verdict  of  the  jury  will  not 
be  disturbed  on  account  of  the  court's  refusal  to  grant  it. 
Bridge  Co.  v.  Bridge  Co.,  34  W.  Va.  155. 

i.     Giving  undue  importance  to  the  evidence. 

An  instruction  given  at  the  request  of  a  party  and 
covering  only  a  part  of  the  theory  to  which  it  relates,  and 
tending  to  prove  which  there  is  evidence  in  the  case,  is 
open  to  criticism  because  of  its  narrowness,  but  if 
no  general  instruction,  stating  the  law  upon  the  theory 
is  given  in  the  case,  and  the  instruction  is  not  in  such 
terms  as  to  give  undue  importance  referred  to  in  it,  and 
it  is  manifest  that  the  giving  of  such  instruction  has  not 
operated  to  the  prejudice  of  the  party  complaining,  the 
judgment  will  not  be  reversed  on  account  thereof.  Max- 
well v.  Kent,  49  W.  Va.  543. 

29.  LOST  INSTRUCTIONS. 

a.     Presumptions  as  to. 

An  instruction  lost,  and  not  appearing  in  the  record, 
will  be  presumed  to  be  correct,  and  no  error  can  be  as- 
signed to  it.  Jordan  v.  Benwood,  42  W.  Va.  313. 

30.  WITNESSES — COMPETENCY   OF — IN   GENERAL. 

a.  By  whom  competency  of  witnesses  determined. 

b.  Wife  not  a  competent  witness  against  her  hus- 
band in  a  prosecution  for  crime. 

c.  As  to  one  convicted  of  felony — Exceptions  as  to 

perjury. 

a.     By  whom  competency  of  witnesses  determined. 
The  question  of  the  competency  of  a  witness  is  a  ques- 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.        37 

tion  for  the  court  and  not  for  the  jury ;  and  when  a  wit- 
ness is  offered,  and  a  doubt  is  raised  as  to  the  competency 
of  such  witness,  it  is  the  duty  of  the  court  to  determine 
that  question  upon  a  careful  examination  of  the  witness. 
If  on  the  examination  of  such  witness  his  incompetency 
appears,  it  is  the  duty  of  the  court,  on  motion  of  the  party 
whose  interests  are  affected  by  the  testimony  of  such  wit- 
ness, to  exclude  his  evidence  from  the  jury ;  and  it  would 
be  error  for  the  court  to  refer  the  question  of  competency 
to  the  jury,  either  by  instruction  or  otherwise.  State  v. 
Michael,  37  W.  Va.  565. 

b.  Wife  not  a  competent  witness  against  her  husband  in 

a  prosecution  for  crime. 

A  wife  is  not  a  competent  witness  against  her  husband 
in  a  prosecution  for  crime. 

Quaere?  Is  a  wife  or  husband  a  competent  witness 
now  against  each  other,  in  a  prosecution  for  crime  com- 
mitted against  such  witness?  State  v.  Woodrow,  58  W. 
Va.  — . 

c.  As  to   one   convicted   of   felony — Exceptions   as   to 

perjury. 

A  person  convicted  of  felony  and  sentenced  therefor, 
except  it  be  for  perjury,  may,  by  leave  of  the  court, 
be  examined  as  a  witness  in  any  criminal  prosecution, 
though  he  has  not  been  pardoned  or  punished  therefor. 
State  v.  Hat  field,  48  W.  Va.  562. 

31.       MISTAKE  IN   NOT   SWEARING   WITNESSES. 

a.  Discovery  of  mistake  before  the  jury  retires. 

b.  Same — After  verdict  is  rendered. 


38      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

a.  Discovery  of  mistake  before  the  jury  retires. 

If  a  mistake  in  not  swearing  a  witness  is  discovered 
before  the  jury  retires,  it  may  be  corrected  either  by 
swearing  the  witness  and  rehearing  his  evidence,  or  by 
instructing  the  jury  to  disregard  his  evidence.  State  v. 
Williams,  49  W.  Va.  220. 

b.  Same — After  verdict  is  rendered. 

If,  after  verdict,  it  is  shown  to  the  court,  upon  a  motion 
for  a  new  trial,  that  a  witness  had  testified  without  having 
been  sworn,  and  that  neither  the  party  affected,  nor  his 
counsel,  had  knowledge  of  such  irregularity  until  after 
the  verdict  was  rendered,  a  new  trial  must  be  allowed, 
although  the  error  was  purely  inadvertent  and  acci- 
dental. State  v.  Taylor,  57  W.  Va.  228. 

32.  CLASSIFICATION  OF  WITNESSES. 

a.     Opportunities  for  winesses  to  know  the  truth. 

It  is  error  to  classify  witnesses  in  respect  to  the  weight 
and  value  of  their  evidence  by  an  instruction  to  the  jury, 
unless  the  classification  is  based  upon  a  well  defined  dis- 
tinction as  to  .the  opportunities  and  powers  of  the  wit- 
nesses to  know  the  truth.  Ward  v.  Brown,  53  W.  Va.  228. 

33.  SINGLING  OUT  WITNESSES. 

a.  Naming  witness  whose  testimony  is  applicable. 

b.  Same — When   instruction   proper  in   other  re- 

spects. 

a.     Naming  witness  whose  testimony  is  applicable. 

It  is  improper  to  single  out  one  witness,  and  instruct 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.       39 

the  jury  that  his  evidence  is  entitled  to  great  weight. 
Kerr  v.  Lunsford,  31  W.  Va.  662. 

b.     Same — When  instruction  proper  in  other  respects. 

If  an  instruction  is  proper  in  other  respects,  it  is  not 
vitiated  by  merely  naming  the  witness  to  whose  testimony 
it  is  applicable.  Ward  v.  Brown,  53  W.  Va.  229. 

34.  IMPEACHMENT    OP    WITNESSES. 

a.     Arbitrary  disregard  of  evidence. 

It  is  not  error  for  the  court,  after  correctly  instructing 
the  jury  as  to  how  witnesses  may  be  impeached,  to  say 
to  the  jury  that  "it  is  neglect  of  a  juror's  duty  to  arbitra- 
rily disregard  the  evidence  of  a  witness."  State  v.  Sutfin, 
22  W.  Va.  772. 

35.  DISREGARDING   TESTIMONY   OF   WITNESSES. 

a.  Providence  of  court  as  to. 

b.  Province  of  jury  as  to. 

c.  Same — As  to  weight  of  evidence. 

a.  Province  of  court  as  to. 

It  is  not  the  province  of  the  court  to  instruct  the  jury 
in  regard  to  the  testimony  of  any  witness,  that  they  shall 
or  shall  not  believe  all  or  none,  or  any  part  of  the  evidence 
given  by  such  witness.  State  v.  Allen,  45  W.  Va.  77. 

b.  Province  of  jury  as  to. 

It  is  error  for  the  court  to  refuse  to  instruct  the  jury 
that  if  they  believe  the  testimony  of  a  witness  on  any 
material  point  is  untrue,  they  are  at  liberty  to  disregard 
his  whole  testimony.  State  v.  Perry,  41  W.  Va.  642. 


40      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

c.     Same — As  to  weight  of  evidence. 

An  instruction  which  tells  the  jury  that  if  they  believe 
any  witness  has  testified  falsely  in  the  case,  as  to  material 
matters,  they  may  disregard  such  false  testimony  or  give 
to  it  and  all  the  evidence  of  such  witness  such  weight  as 
they  believe  it  entitled  to,  is  improper  in  failing  to  in- 
form the  jury  that  they  may  disregard  all  the  evidence 
of  such  witness.  Ward  v.  Brown,  53  W.  Va.  229. 

36.      EXISTENCE  OP  FACTS. 

a.  Facts  proven. 

b.  Facts  constituting  defense. 

c.  Absence  of  evidence. 

d.  Law  applicable  to  facts. 

e.  Doubtful  material  facts. 

a.  Facts,  proven. 

It  is  not  reversible  error  to  refuse  to  instruct  the  jury 
that  they  should  consider  facts,  established  by  the  evi- 
dence, in  arriving  at  their  verdict.  State  v.  Prater,  52  W. 
Va.  134. 

b.  Facts  constituting  defense. 

If  the  facts  on  either  side  have  been  proven  before  the 
jury,  the  court,  at  the  trial,  may  instruct  the  jury  that 
such  facts  constitute  no  defense  for  the  defendant  and  no 
grounds  of  claim  by  the  plaintiff.  Cappellar  v.  Insurance 
Co..  21  W.  Ya.  577. 

c.  Absence  of  evidence. 

Where  the  plaintiff,  in  an  action  at  law,  fails  to  intro- 
duce any  evidence  at  all  to  prove  a  fact  essential  to  his 
recovery,  it  is  error  for  the  court  to  give  an  instruction 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.        41 

which  submits  to  the  jury  the  question  of  the  existence 
of  such  fact.     Parker  v.  Building  Asso.,  55  W.  Va.  134. 

d.  Law  applicable  to  facts. 

It  is  competent  for  the  court  to  instruct  the  jury  that  if 
from  the  evidence  before  them,  they  believe  certain  facts 
are  proved,  that  then  certain  legal  consequences  must 
follow,  and  that  the  law  as  applicable  to  the  facts  so  estab- 
lished is  for  the  plaintiff  or  defendant,  and  they  must  find 
accordingly.  Skeels  v.  Railroad  Co.,  3  W.  Va.  556. 

e.  Doubtful  material  facts. 

If  the  material  facts  are  doubtful  and  a  verdict  for 
either  party  would  be  sustained,  the  court  should  not  in- 
struct the  jury  to  find  against  such  party.  White  v. 
Brewing  Co.,  51  W.  Va.  259. 

37.      SINGLING  OUT  FACTS. 

a.  Ignoring  material  facts. 

b.  Giving  undue  prominence  to  certain  facts. 

c.  Existence  of  other  facts. 

d.  Ignoring  other  facts  proven. 

e.  Same — Material  facts  or  elements. 

f.     Making  specific  facts  bases  of  instructions. 

a.  Ignoring  material  facts. 

An  instruction  which  singles  out  certain  facts  and 
makes  the  case  turn  on  them,  ignoring  other  material  facts 
in  the  case,  is  erroneous.  Robinson  v.  Lowe,  50  W.  Va  75. 

b.  Giving  undue  prominence  to  certain  facts. 

An  instruction  which  singles  out  and  gives  undue  prom- 


42      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

inence  to  certain  facts,  ignoring  other  facts,  proved,  and 
of  equal  importance  in  a  proper  determination  of  the  case, 
is  improper.  State  v.  Dodds,  54  W.  Va.  290. 

c.  Existence  of  other  facts. 

It  is  error  for  the  court,  in  giving  instructions  to  the 
jury,  to  single  out  certain  facts  and  instruct  them  that, 
if  they  are  true,  they  must  find  for  either  party  in  ac- 
cordance with  such  facts,  when  there  are  other  facts  in 
the  case  bearing  on  the  subject  tending  to  establish  a 
different  conclusion.  Starrs  v.  Feick,  24  W.  Va.  GOG. 

d.  Ignoring  other  facts  proven. 

An  instruction  which  sets  forth  the  evidence  as  to  part 
of  the  facts  in  issue,  and  ignores  certain  other  facts 
proven,  and  on  the  former  directs  a  verdict  in  favor  of 
the  party  in  whose  favor  it  was  given,  is  erroneous. 
Claiborne  v.  Railway  Co.,  46  W.  Va.  363. 

e.  Same — Material  facts  or  elements. 

An  instruction  should  not  single  out  one  fact,  or  ele- 
ment of  the  case  and  make  the  case  turn  entirely  on  it, 
by  telling  the  jury  to  find  according  to  the  hypothesis  of 
that  fact  or  element,  ignoring  all  other  material  facts  or 
elements.  State  v.  Morgan,  35  W.  Va.  261. 

f.  Making  specific  facts  basis  of  instructions. 

It  is  not  proper  for  the  court  to  separate  a  few  facts 
from  their  connection  with  others,  and  make  them  the 
basis  of  an  instruction.  Such  a  course  would  tend  to 
mislead  the  jury.  Washington  v.  Railroad  Co.,  17  W.  Va. 
215. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.        43 

38.  COMPETENCY  OF  EVIDENCE. 

a.     How  competency  determined — Preliminary  facts. 

When  a  question  occurs  before  a  court  of  law  whether 
certain  evidence  is  competent,  the  determination  of  which 
depends  upon  certain  preliminary  facts,  those  facts  must 
be  decided  by  the  court.  Snooks  v.  Wingfield,  52  W.  Va. 
442. 

39.  CIRCUMSTANTIAL  EVIDENCE. 

a.  What  necessary  for  conviction  on. 

b.  Comparison  of  with  other  evidence. 

a.  What  necessary  for  conviction  on. 

A  person  charged  with  crime  may  be  convicted  on  cir- 
cumstantial evidence  alone,  if  the  jury  believe  from  such 
evidence,  to  a  moral  certainty  and  beyond  a  reasonable 
doubt,  that  the  defendant  is  guilty  of  the  crime  alleged 
against  him ;  and  the  jury  may  be  properly  so  instructed, 
and  that  they  have  the  right  to  convict  upon  such  evi- 
dence in  a  case  in  which  the  evidence  is  circumstantial, 
if,  from  it,  they  so  believe  the  defendant  is  guilty,  and, 
further,  that  such  evidence  is  not  only  competent,  but  is 
sometimes  the  only  mode  of  proof  in  criminal  cases. 
State  v.  Sheppard,  49  W.  Va.  585. 

b.  Comparison  of  with  other  evidence. 

In  a  case  where  the  evidence  is  entirely  circumstantial, 
it  is  error  in  the  court  to  instruct  the  jury  that  circum- 
stantial evidence  is  often  more  reliable  than  the  direct 
testimony  of  eye-witnesses,  and  that  a  verdict  of  guilty  in 
such  cases  may  rest  on  a  surer  basis  than  when  rendered 
upon  the  testimony  of  eye-witnesses  where  memory  must 


44       LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

be  relied  upon,  and  where  passions  and  prejudices  may 
have  influenced  them,  for  the  reason  that  it  institutes  a 
comparison  between  the  two  kinds  of  evidence  mentioned, 
and  instructs  the  jury  as  to  the  comparative  weight  of 
circumstantial  evidence.  State  v.  Musgrave,  43  W.  Va. 
672. 

40.      WEIGHT  AND  PREPONDERANCE  OF  EVIDENCE. 

a.  Weight   of  evidence — Instructions   as  to,   pro- 

hibited. 

b.  Same — How  determined. 

c.  Same — Expert  evidence — Connection  with  other 

evidence. 

d.  Same — Interest  of  parties  in  the  result  of  the 

verdict. 

e.  Preponderance  of  evidence — Doubtful  material 

facts. 

a.  Weight  of  evidence — Instructions  as  to,  prohibited. 

It  is  manifestly  improper  to  instruct  the  jury  as  to  the 
weight  of  evidence.  State  v.  Greer,  22  W.  Va,  801. 

b.  Same — How  determined. 

The  weight  to  be  accorded  to  evidence  is  matter  for  de- 
termination by  the  jury,  and  an  instruction  which  wholly 
or  partially  withdraws  it  from  their  control,  by  limiting 
or  defining  it,  is  generally  cause  for  error.  Harmon  v. 
Mnddy  Bros.,  57  W.  Va.  66. 

c.  Same  —  Expert  evidence  —  Connection   with  other 

evidence. 

Expert  testimony,  except  under  special  circumstances, 
is  entitled  to  only  such  weight  as  the  jury  may  deem  it 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.        45 

entitled  to  when  viewed  in  connection  with  all  the  evi- 
dence and  circumstances.  Ward  v.  Brown,  53  W.  Va. 

228. 

d.  Same — Interest  of  parties  in  the  result  of  the  verdict. 
The  court  properly  refuses  an  instruction  to  the  effect 

that  the  jury,  in  passing  upon  the  testimony  of  a  party, 
may  take  into  consideration  his  situation  and  interest  in 
the  result  of  the  verdict  and  all  the  circumstances  sur- 
rounding him,  and  give  it  only  such  weight  as  they  may 
deem  it  fairly  entitled  to,  when  a  witness  against  him  is 
deepty  interested  in  a  moral  sense,  and  no  such  direction 
as  to  his  testimony  is  included.  Tompkins  v.  Insurance 
Co.,  53  W.  Va.  479. 

e.  Preponderance  of  evidence — Doubtful  material  facts. 
The  circuit  court  commits  no  reversible  error  in  in- 
structing a  jury  to  find  for  a  party  in  whose  favor  the 
evidence  plainly  and  decidedly  preponderates.       If  the 
material  facts  are  doubtful  and  a  verdict  for  either  party 
would  be  sustained,  the  circuit  court  should  not  instruct 
the  jury  to  find  against  such  party.     White  v.  Brewing 
Co..  51  W.  Va.  259. 

i 

41.   CONFLICTING  OR  CONTRADICTORY  EVIDENCE. 

a.  Specifying  weight  or  value  of  testimony. 

b.  Law  applicable  to  different  theories. 

c.  Facts  supposed — Preponderance  of  evidence. 

a.    Specifying  weight  and  value  of  testimony. 

The  giving  of  erroneous  instructions  bearing  upon  the 
weight  and  value  of  certain  testimony,  when  the  evidence 


46      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

is  contradictory,  is  cause  for  reversal.     Ward  v.  Brown, 
53  W.  Va.  230. 

b.  Law  applicable  to  different  theories. 

AVhen  there  is  conflict  of  testimony,  and  evidence  on 
one  side  supporting  one  theory,  and  evidence  on  the  other 
side  supporting  another  and  conflicting  theory,  and  the 
principles  of  law  applicable  to  each  theory  are  different, 
it  is  error  for  the  court  to  give  as  instructions  to  the 
jury  abstract  propositions  of  law  which  are  applicable  to 
only  one  of  said  theories,  without  any  reference  in  such 
instructions  to  the  evidence  in  the  case.  Webb  v.  Packet 
Co.,  43  W.  Va.  800. 

c.  Facts  supposed — Preponderance  of  evidence. 
Where  there  is  conflicting  evidence  as  to  the  facts  sup- 
posed the  question  is  one  for  the  jury  and  their  verdict 
should  not  be  disturbed  unless  it  is  clearly  contrary  to  a 
decided  preponderance  of  the  evidence.     Foley  v.  City  of 
Hinttinyton,  51  W.  Ya.  396. 

42.  COLORABLE  EVIDENCE. 

a.     Sound  legal  proposition — Slight  evidence. 

It  is  not  error  to  refuse  an  instruction  which  puts  a 
legal  proposition,  though  sound,  if  the  evidence  to  pre- 
sent it  as  pertinent  to  the  case  is  slight,  and  only  color- 
able, and  does  not  fairly  present  it  for  consideration,  and 
where  a  verdict  finding  according  to  the  instruction  would 
be  set  aside  as  without  sufficient  evidence.  McDonald  v. 
Cole,  46  W.  Va.  186. 

43.  UNCORROBORATED  EVIDENCE. 

a.     Duty  of  jury  to  scrutinize. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.        47 

b.  Prohibiting  instructions  as  to  weight  of — Ac- 

complices. 

c.  Testimony  of  accomplices — Action  of  appellate 

court  as  to. 

a.  Duty  of  jury  to  scrutinize. 

It  is  error  for  the  court  to  refuse  to  instruct  the  jury 
that  it  is  their  duty  to  scrutinize,  with  care  and  caution, 
the  uncorroborated  and  contradicted  testimony  of  wit- 
nesses.— State  v.  Perry,  41  W.  Va.  641. 

b.  Prohibiting  instructions  as  to  weight  of — Accomplices. 
While  the  uncorroborated  testimony  of  an  accomplice 

is  suspicious,  and  emanates  from  a  bad  source,  yet  the 
jury,  may  believe  it,  although  it  is  wholly  uncorroborated; 
and  in  this  state  it  is  not  proper  for  the  court  to  give  any 
instructions  to  the  jury  as  to  the  weight  of  such,  or  any 
other  evidence.  State  v.  Betsall,  11  W.  Va.  703. 

c.  Testimony  of  accomplices — Action  of  appellate  court 

as  to. 

A  conviction  may  be  had  on  the  uncorroborated  testi- 
mony of  an  accomplice,  and  >in  such  case,  if  the  judge 
who  presided  at  the  trial  is  satisfied  with  the  verdict  and 
refuses  to  set  aside,  the  appellate  court  will  not  reverse 
the  judgment  and  set  aside  the  verdict  on  the  ground  that 
it  rested  solely  on  the  uncorroborated  testimony  of  an  ac- 
complice. State  v.  Betsall,  11  W.  Va.  704. 

44.      ISOLATED  PORTIONS  OF  EVIDENCE. 

a.     Giving  undue  prominence  to. 

It  is  not  error  to  refuse  to  give  an  instruction  that  gives 


48      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

undue  prominence  to  isolated  portions  of  the  evidence, 
and  therefore  calculated  to  mislead  the  jury.  State  v. 
Morrison,  49  W.  Va.  211. 

45.  INADMISSIBLE    OR    ILLEGAL    EVIDENCE. 

a.  When  party  cannot  complain  of. 

b.  Failure  to  follow  with  other  evidence. 

a.  When  party  cannot  complain  of. 

Upon  a  writ  of  error  to  an  order  of  the  circuit  court 
setting  aside  the  verdict  of  a  jury  and  awarding  a  new 
trial,  the  plaintiff  in  error  can  nqt,  for  the  purpose  of 
having  such  order  reversed,  complain  in  this  court  that 
the  trial-court  admitted  illegal  evidence,  or  gave  the  jury 
improper  instructions.  Ruffner  v.  Hill,  31  W.  Va.  428. 

b.  Failure  to  follow  with  other  evidence. 

If  a  party  introduce  evidence,  not  admissible  by  itself, 
and  fail  to  follow  it  with  other  evidence,  to  make  it  ad- 
missible, it  is  to  his  own  folly  and  loss,  and  not  to  the 
injury  to  the  other  party ;  and  the  court  should  direct  the 
jury  to  disregard  it.  Patton  v.  Navigation  Co.,  13  W. 
Va.  260. 

46.  INTIMATION   OF  COURTIS  OPINION   OF  EVIDENCE. 

a.  Discussion    of   evidence — Effect    of   evidence — 

Credibility  of  witnesses. 

b.  Assuming  certain  things  as  facts. 

c.  Influencing  the  jury. 

d.  Same — Weight  of  evidence. 

e.  As  to  the  guilt  of  the  accused. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.       49 

a.  Discussion  of  evidence — Effect  of  evidence — Credi- 

bility of  witnesses. 

Under  our  practice,  the  judge  must  not  state  the  evi- 
dence, or  discuss,  or  give,  or  intimate  his  opinion  upon  it. 
If  anything  drops  from  him,  either  casually  or  inad- 
vertently, in  giving  instructions,  or  otherwise,  indicating 
an  opinion  on  the  weight  or  effect  of  the  evidence,  or  the 
credibility  of  a  witness,  it  is  generally  ground  for  re- 
versal. Cases  cited  in  State  \.  Thompson,  21  W.  Va,  756. 

b.  Assuming  certain  things  as  facts. 

When  an  instruction  of  the  court  assumes  certain 
things  as  facts,  and  is  in  such  shape  as  to  intimate  to  the 
jury  what  the  judge  believes  the  evidence  to  be  touching 
such  facts,  it  is  error  to  give  such  instruction,  although  it 
may  propound  the  law  correctly.  State  v.  Allen,  45  W. 
Va.  06. 

c.  Influencing  the  jury. 

It  is  error  for  the  court  in  the  trial  of  a  cause,  to  make 
a  remark  to,  or  in  the  presence  of  the  jury,  in  reference 
to  matters  of  fact,  which  might,  in  any  degree,  influence 
them  in  their  verdict.  State  v.  Hurst,  11  W.  Va.  54. 

d.  Same — Weight  of  evidence. 

The  courts  of  this  state  are  peculiarly  jealous  of  any 
encroachment  by  the  court  on  the  province  of  the  jury, 
and  it  is  error  for  a  court,  in  the  trial  of  a  case,  to  inti- 
mate any  opinion  in  reference  to  matters  of  fact,  which 
might,  in  any  degree,  influence  the  verdict,  nor  can  the 
court  instruct  the  jury  as  to  the  weight  to  be  given  by 
them  to  the  evidence  of  any  witness,  whether  the  witness 
be  impeached  or  not,  or  whether  he  is  contradicted  as  to 


50      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

material  facts  or  not.  The  jury  are  the  exclusive  judges 
of  the  weight  to  be  attached  to  the  evidence  of  any  wit- 
ness, and  the  court  would  err  in  influencing  them,  in  any 
way,  determining  this  weight,  either  by  instruction  as  to 
the  proper  manner  in  ascertaining  such  weight,  or  other- 
wise. State  v.  Thompson,  21  W.  Va.  756. 

e.     As  to  the  guilt  of  the  accused. 

Instructions  given  by  the  trial  court,  on  its  own  mo- 
tion, in  a  felony  case,  which  may  convey  to  the  jury  the 
opinion  of  the  court  as  to  the  guilt  of  the  accused  are 
improper.  State  v.  Kerns,  47  W.  Va.  266. 

47.      ARGUMENTS  OF  COUNSEL. 

a.  Abuse  of  privileges — Necessity  for  instructions 

as  to. 

b.  Same. 

c.  Failure  of  opposing  party  to  examine  a  material 

witness. 

a.  Abuse  of  privileges — Necessity  for  instructions  as  to. 
In  order  to  authorize  this  court  to  revise  errors  predi- 
cated upon  the  abuse  of  counsel  of  the  privilege  of  argu- 
ment, it  should  be  made  to  appear  that  the  party  asked 
and  was  refused  an  instruction  to  the  jury  to  disregard 
the  unauthorized  statements  of  the  counsel.     Landers  v. 
Railroad  Co.,  46  W.  Va.  492. 

b.  Same. 

Comment  by  an  attorney  for  the  state,  in  his  argument 
of  a  felony  case  upon  the  failure  of  the  accused,  who  has 
testified  in  the  case,  to  have  his  wife  testify  and  cor- 
roborate statements  of  his  own  as  to  matters  said  bv  him 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.       51 

to  be  known  to  her,  is  improper;  and,  if  objected  to  at 
the  time,  the  refusal  of  the  court  to  prohibit  it  and  direct 
the  jury  to  disregard  it  is  reversible  error.  State  v.  Tay- 
lor, 57  W.  Va.  228. 

c.     Failure  of  opposing  party  to  examine  a  material  wit- 
ness. 

It  is  not  improper  for  the  trial-court  to  permit  counsel 
in  argument  before  the  jury  to  comment  on  the  fact  that 
the  other  party  has  not  called  and  examined  a  material 
witness  summoned  on  his  behalf  and  present,  and  to  ask 
such  question  as  may  be  proper  to  lay  the  foundation  for 
such  comment.  But  such  matters  are  largely  within  the 
discretion  of  the  trial-court.  Robinson  v.  Woodford,  37 
W.  Va.  377. 

48.  PROBABLE  CAUSE. 

a.     Mixed  questions  of  law  and  fact — Province  of  courts 

as  to. 

Probable  cause  is  a  mixed  question  of  law  and  fact. 
What  are  the  existing  facts,  on  which  probable  cause  or 
its  absence  is  based,  is  a  question  of  fact  to  be  decided 
by  the  jury.  But  the  facts  being  admitted,  undisputed  or 
assumed,  whether  they  constitute  probable  cause  or  not, 
or  whether  from  them  the  existence  or  absence  of  probable 
cause  is  to  be  inferred,  is  a  pure  question  of  law  for  the 
decision  of  the  court,  and  not  for  the  jury.  Vinal  v.  Core, 
18  W.  Va.  2. 

49.  EXISTENCE   OP    MALICE. 

a.     Right  of  courts  to  define  malice. 

Whether  malice  exists  or  not  is  a  pure  question  of  fact 


52      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 

for  the  jury,  and  should  not  be  passed  upon  by  the  court, 
except  to  define  to  the  jury  clearly  what  is  meant  by 
malice.  Whether  particular  facts  admitted,  undisputed 
or  assumed,  do,  or  do  not  constitute  malice,  or  are  such 
that  malice  may  be  inferred  from,  is  a  mere  question  of 
fact  for  the  jury.  The  court  can  draw  no  inference  from 
any  state  of  facts  that  malice  does  or  does  not  exist. 
Vinal  v.  Core,  18  W.  Va.  2. 

50.  SELF-DEFENSE. 

a.     Character  of  assault. 

An  instruction  is  correct,  which  informs  the  jury  that 
a  party  cannot  shield  himself  under  the  plea  of  self-de- 
fense, if  he  had  reason  to  believe  and  did  believe  that  the 
assaulting  party  only  intended  to  commit  a  trespass,  and 
did  not  intend  to  take  life  or  inflict  great  bodily  harm. 
State  v.  Greer,  22  W.  Va.  802. 

51.  CHARACTER  OF  ACCUSED CHARACTER  OP  VICTIM. 

a.  Admissibility  of  evidence  as  to  character  of  ac- 

cused and  victim. 

b.  Assailment  of  character  of  accused. 

a.     Admissibility  of  evidence  as  to  character  of  accused 

and  victim. 

The  bad  character  of  the  victim  never  excuses,  justifies 
or  extenuates  the  offense  of  killing,  except  when  in  con- 
nection with  other  facts  it  make  out  a  case  of  self  de- 
fense. The  accused  is  never  permitted  to  say  of  his  vic- 
tim, "I  killed  him  because  he  was  bad  man,"  nor  is  he 
permitted  to  prove  his  bad  character  upon  that  theory. 


LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS.       53 

Evidence  of  the  good  character  of  the  accused  is  always 
admissible  in  such  cases  to  disprove  guilt,  and  of  his 
pacific  character  to  aid  the  jury  in  ascertaining  the  prob- 
able grade  of  the  offense.  State  v.  Morrison,  49  W.  Va. 
219. 

b.     Assailment  of  character  of  accused. 

It  was  not  error  to  refuse  to  instruct  the  jury  that  evi- 
dence of  good  character  cannot  be  received  in  behalf  of 
the  prisoner,  until  his  character  has  been  assailed.  State 
v.  Donohue,  22  W.  Va.  762. 

52      DEGREES    OP    PUNISHMENT. 

a.  Failure  of  evidence  to  establish. 

b.  Whether  voluntary  manslaughter  or  homicide. 

c.  Whether  murder  in  first  or  second  degree. 

a.  Failure  of  evidence  to  establish. 

The  refusal  of  an  instruction,  on  a  trial  for  murder, 
giving  the  findings  in  the  power  of  the  jury,  including  one 
of  involuntary  manslaughter,  is  not  error  when  no  evi- 
dence in  the  case  tends  to  show  that  degree  of  homicide. 
Such  instruction  should  not  be  given.  State  v.  Woodrow, 
58  W.  Va.  — . 

b.  Whether  voluntary  manslaughter  or  homicide. 
Whether  a  homicide  is  voluntary  manslaughter  or  homi- 
cide in  self  defense,  is  a  question  of  fact  for  the  jury  upon 
the  evidence.    State  v.  Dickey,  48  W.  Va.  325. 

c.  Whether  murder  in  first  or  second  degree. 

The  question  whether  a  particular  homicide  is  murder 
in  the  first  or  second  degree  is  one  of  fact  for  the  jury. 
State  v.  Welch,  36  W.  Va.  691. 


54      LEGAL  PRINCIPLES  GOVERNING  INSTRUCTIONS. 
IV.     EXCEPTIONS  TO  INSTRUCTIONS. 

1.  NECESSITY  FOR  EXCEPTIONS. 

2.  PURPOSE    OF    EXCEPTIONS — REQUISITES    OF    EXCEP- 
TIONS. 

3.  TIME       FOR      OBJECTING — EXCEPTING — OFFERING 

MAKING TENDERING  —  SIGNING CERTIFYING 

— NOTING  AND  RECORDING    EXCEPTIONS    AND    BILLS 
OF  EXCEPTION. 

4.  NECESSITY  FOR  SIGNATURES  OF  TRIAL-JUDGE. 

5.  CERTIFYING  THE  EVIDENCE. 

6.  EXCLUDING  EVIDENCE. 

7.  WHAT   ORDER-BOOK   AND   RECORD     OF     TRIAL     COURT 
MUST  SHOW — ALTERATION  OF  THE  RECORD. 

8.  SETTING  ASIDE  THE  VERDICT. 

1.      NECESSITY  FOR  EXCEPTIONS. 

a.  What  notice  exeeptor  required  to  give — Waiv- 

ing exceptions. 

b.  General  exceptions — When  sufficient. 

c.  Same. 

d.  Error  appearing  on  the  record — Statute  con- 

cerning defined. 

a.     What  notice  exceptor  required  to  give — Waiving  ex- 
ceptions. 

If  a  party  upon  a  trial  before  a  jury  objects  to  the  giv- 
ing of  instructions,  and  after  his  objections  are  over- 
ruled and  the  instructions  given,  he  does  not  except  to 
the  giving  of  the  instructions,  he  will,  in  the  appellate 
court,  be  deemed  to  have  waived  his  objections.  It  is  not 
enough  that  he  objects,  but  upon  the  overruling  of  his 


EXCEPTIONS  TO  INSTRUCTIONS.  55 

objection,  if  he  would  save  the  alleged  error  in  the  giving 
of  the  instruction,  he  must  except  and  thereby  give  notice 
that  he  intends  to  have  the  rulings  reviewed,  so  as  to  give 
the  trial  court  an  opportunity  to  re-examine  the  instruc- 
tions and  correct  any  error  in  giving  such  instructions. 
Dimmey  v.  Railroad  Co.,  27  W.  Va.  52. 

b.  General  exceptions — When  sufficient. 

It  is  unnecessary  that  there  should  be  separate  bills  of 
exception  taken  and  signed  to  each  ruling  or  opinion  of 
the  court  excepted  to,  to  entitle  the  party  excepting  to 
such  opinion  or  ruling  to  have  the  same  reviewed  by  an 
appellate  court.  Exceptions  of  a  party  to  the  opinions 
of  the  court,  though  they  may  be  numerous,  may  be  in- 
corporated into  one  bill  of  exceptions.  Snyder  \.  Rail- 
road C"o.,  11  W.  Va.  14. 

c.  Same. 

When  several  instructions  are  asked  and  refused,  and  a 
general  exception  is  taken  to  the  refusal,  if  all  the  in- 
structions are  proper  and  should  have  been  given,  the 
exception  is  sufficient  and  the  judgment  will  be  reversed. 
Ocheltree  v.  McClung,  7  W.  Va.  233. 

d.  Error  appearing  on  the  record — Statute  concerning 

defined. 

The  provision  of  the  statute  that  "a  party  may  avail 
himself  of  any  error  appearing  on  the  record,  by  which 
he  is  prejudiced,  without  excepting  thereto,"  means  with- 
out obtaining  a  formal  bill  of  exceptions,  provided  he  ob- 
jects or  excepts  on  the  record  to  the  action  of  the  court 
complained  of,  and  provided  it  is  such  a  matter  as  can 
be  considered  without  a  formal  bill  of  exceptions.  Perry 
v.  Horn,  22  W.  Va.  381. 


56  EXCEPTIONS  TO  INSTRUCTIONS. 

2.       PURPOSE     OF     EXCEPTION'S — REQUISITES    OF     EXCEP- 
TIONS. 

a.  Office  of    bills    of   exceptions — What   exceptor 

must  show. 

b.  In  general — What  bills  of  exception  and  record 

mush  show. 

c.  How  bills  of  exception  must  present  the  case. 

d.  Necessity  for  certifying  sufficient  evidence  to 

show  relevancy  of  instructions. 

e.  Same. 

f.  Failure  to  set  forth  sufficient  matter  to  show 

whether  instructions  are  correct. 

g.  Exceptions  to  part  of  instructions  only. 

h.     Exceptions  raised  in  another  bill  of  exceptions. 
i.     Setting    out    sufficient    grounds  —  Insufficient 

grounds. 

j.     Saving  points — What  necessary, 
k.     Waiving  points — When  regarded  as  waived. 
1.     Presumption  as  to  regularity  of  proceeding  of 

trial  court. 

a.  Office  of  bills  of  exception — What  exceptor  must  show 
The  office  of  a  bill  of  exception  is  to  call  the  attention 

of  the  court  to  some  specific  matter  as  to  which  error  is 
claimed,  and  when  the  acceptant  relies  upon  the  bill  of 
exceptions  he  must  show  by  means  of  it  the  error  com- 
plained of  clearly  and  affirmatively ;  and  in  order  to  have 
relief  he  must  further  show  that  such  error  was  to  his 
prejudice.  State  v.  Tucker,  52  W.  Va.  421. 

b.  In  general — What  bill  of  exceptions  and  record  must 

show. 
If  errors,  or  supposed  errors,  are  committed  by  a  court 


EXCEPTIONS  TO  INSTRUCTIONS.  57 

in  its  rulings  during  the  trial  of  a  case  by  a  jury,  the  ap- 
pellate court  cannot  review  these  rulings  unless,  first,  they 
were  objected  to  when  made  and  the  point  saved  and  a  bill 
of  exceptions  taken  showing  these  rulings  and  unless,  sec- 
ond, a  new  trial  was  asked  of  the  court  below  and  refsed, 
and  such  refusal  objected  to  in  the  court  below,  and  this 
appears  of  record.  If  either  of  these  essentials  is  omitted, 
the  appellate  court  cannot  review  the  rulings.  Danks  v. 
Rodeheaver,  26  W.  Va,  274. 

c.  How  bills  of  exception  must  present  the  case. 

The  bill  of  exception  must  so  present  the  case  that  the 
appellate  court  may  be  able  to  determine  whether  the 
jury  has  correctly  applied  the  law  to  the  facts,  in  order 
that  it  may  safely  correct  any  error  committed  by  the 
jury,  the  presumption  being  always  in  favor  of  the  ver- 
dict; and  therefore,  unless  the  error  complained  of  is 
made  to  appear  affirmatively,  it  will  not  be  disturbed. 
Black  v.  Thomas,  21  W.  Va.  712. 

d.  Necessity  for  certifying  sufficient  evidence  to  show 

relevancy  of  instruction. 

Where  the  court  refuses  an  instruction  to  the  jury,  the 
appellate  court  will  not  reverse  the  judgement,  unless 
enough  of  the  evidence  has  been  set  out  in  the  exception  to 
show  the  relevancy  and  propriety  of  the  instruction,  be- 
cause error  must  affirmatively  appear;  and  for  the  same 
reason,  if  the  court  give  the  instruction,  before  the  ap- 
pellate court  will  reverse  the  judgment,  the  record  must 
show  the  instruction  wrong,  or  that  it  could  not,  in  any 
aspect  of  the  case,  be  properly  given.  Kinsley  v.  County 
Court,  31  W.  Va.  464. 


58  EXCEPTIONS  TO  INSTRUCTIONS. 

e.  Same. 

Error  based  on  the  giving  or  refusal  of  instructions 
ought  to  be  shown  by  bill  of  exceptions  giving  the  instruc- 
tions and  enough  of  the  evidence  to  show  whether  they 
were  proper;  but  where  the  record  otherwise  identifies 
the  instruction,  and  shows  an  exception,  and  the  whole 
evidence  appears,  that  will  suffice,  without  such  bill  of 
exceptions.  Hughes  v.  Frum,  41  W.  Va.  44(>. 

f .  Failure  to  set  forth  sufficient  matter  to  show  whether 

instructions  are  correct. 

Where  a  bill  of  exceptions  taken  to  the  instructions  of 
the  court  below  does  not  set  forth  sufficient  matter  to  show 
whether  the  instructions  were  correct  or  not,  the  presump- 
tion must  be  that  they  were  correct.  Lively  v.  Ballard, 
2  W.  Va.  496. 

g.  Exceptions  to  part  of  instructions  only. 

Where  a  number  of  instructions  are  asked  for  and  the 
record  states  an  exception  to  the  refusal  to  give  a  part  of 
them  only,  the  inference  is  that  the  court  gave  those  to 
which  no  exception  was  taken.  Hood  v.  Maxwell,  1  W. 
Va.  219. 

h.     Exceptions  raised  in  another  bill  of  exceptions. 

When  a  bill  of  exceptions  has  been  taken  after  all  the 
evidence  has  been  submitted,  and  it  purports  to  set  out 
all  the  evidence,  the  evidence  set  out  in  this  bill  of  excep- 
tions may  be  looked  to  in  considering  the  questions  raised 
in  another  bill  of  exceptions  taken  in  the  progress  of  the 
trial.  Klinkler  v.  8.  &  I.  Co.,  43  W.  Va.  219. 

i.     Setting  out  sufficient  grounds — Insufficient  grounds. 
When  the  bill  of  exceptions  sets  out  the  specific  grounds 


EXCEPTIONS  TO  INSTRUCTIONS.  59 

on  which  the  court  set  aside  the  verdict  of  the  jury,  this 
court  will  presume,  unless  the  contrary  appears,  that  it 
acted  on  those  grounds  alone,  and  if  those  grounds  are 
clearly  insufficient,  this  court  will  reverse  the  order  set- 
ting aside  the  verdict;  but  generally,  it  takes  a  stronger 
case  to  reverse  an  order  granting  than  it  does  one  refus- 
ing a  new  trial.  Probst  v.  Braeunlish,  24  W.  Va.  357. 

j.     Savings  points — What  necessary. 

All  that  should  be  required  to  save  a  party  his  point  is, 
that  it  shall  definitely  appear  on  the  record,  the  point  by 
which  he  is  aggrieved,  and  that  he  saved  his  point  and 
did  not  waive  it.  Perry  v.  Horn,  22  W.  Va.  383. 

k.     Waiving  points — When  regarded  as  waived. 

If  a  part}7  upon  a  trial  before  a  jury  objects  to  the  giv- 
ing of  instructions,  and  after  his  objections  are  over- 
ruled, and  the  instructions  are  given,  he  does  not  except 
to  the  giving  of  the  instructions,  he  will,  in  the  appellate 
court,  be  deemed  to  have  waived  his  objections.  Dimmey 
v.  Railroad  Co.,  27  W.  Va.  32. 

1.     Presumption  as  to  regularity  of  proceedings  of  trial 

court. 

Errors  in  the  rulings  of  the  court,  made  during  the 
trial,  and  as  to  other  matters  not  vital  and  jurisdictional 
in  their  nature,  but  such  as  may  be  waived,  must  be  af- 
firmatively shown  by  the  record,  else  the  proceedings  are 
conclusively  presumed  to  be  regular.  State  v.  Henry,  51 
W.  Va.  284. 

3.       TIME  FOR — 

OBJECTING, 
EXCEPTING, 


60  EXCEPTIONS  TO  INSTRUCTIONS. 

OFFERING, 

MAKING, 

TENDERING, 

SIGNING, 

CERTIFYING, 

NOTING,  AND 

RECORDING  EXCEPTIONS  AND 

BILLS  OF  EXCEPTION. 

a.  When  objection  to  instructions  must  be  offered. 

b.  When  exceptions  may  be  made. 

c.  When  bills  of  exception  must  be  made. 

d.  When  bills  of  exception  may  be  tendered. 

e.  Time  within  which  bills  of  exception  must  be 

signed. 

f.  Certification  of  bills  of  exception  to  clerk — Duty 

of  clerk  to  record. 

g.  Necessity  for  properly  certifying  bills  of  excep- 

tion. 

h.     When  bills  of  exception  must  be  noted,  certified 
and  recorded. 

a.  When  objection  to  instructions  must  be  offered. 
Where  no  objection  is  offered  to  an  instruction  before 

the  verdict,  the  giving  of  the  same  cannot  be  ground  for 
setting  aside  the  verdict  and  granting  a  new  trial.  Cor- 
der  v.  Bank,  34  W.  Va.  38. 

b.  When  exceptions  may  be  made. 

An  exception  made  to  the  opinion  of  the  court  pending 
a  jury  trial  should  be  made  at  the  time  of  its  expression, 
but  it  is  not  too  late  if  made  before  the  retirement  of  the 
jury.  An  exception  for  refusal  to  set  aside  the  verdict 


EXCEPTIONS  TO  INSTRUCTIONS.         61 

may  be  made  not  later  that  the  close  of  the  term.  Gilmer 
v.  Sydenstricker,  42  W.  Va.  52. 

c.  When  bill  of  exceptions  must  be  made. 

A  bill  of  exceptions  or  certificate  of  facts  upon  a  trial, 
not  made  before  the  close  of  the  term  at  which  final  judg- 
ment is  rendered,  nor  within  thirty  days  after  its  close,  is 
no  part  of  the  record,  and  cannot  be  considered  in  this 
court.  State  v.  HcGlumpTiy,  37  W.  Va.  805. 

d.  When  bill  of  exceptions  may  be  tendered. 

If  a  point  has  been  raised  at  the  proper  time,  the  bill 
of  exceptions  as  to  such  point  may  be  tendered  to  the 
court  at  any  time  during  the  term  at  which  final  judg- 
ment was  rendered,  or  within  thirty  days  after  the  close 
of  the  term.  State  v.  McGlumpliy,  37  W.  Va.  806. 

e.  Time  within  which  bills  of  exception  must  be  signed. 
Bills  of  exceptions  must  be  signed,  either  during  the 

term  at  which  final  judgment  is  rendered  or  within  thirty 
days  after  its  close,  else  they  are  no  part  of  the  record, 
and  cannot  be  considered  by  this  court.  Jordan  v.  Jordan, 
48  W.  Va.  600. 

f.  Certification  of  bills  of  exception  to  clerk — Duty  of 

clerk  to  record. 

Where  a  judgment  is  rendered  in  a  case,  and  the  court 
allows  thirty  days,  under  the  statute,  to  make  up  and 
obtain  from  the  judge  in  vacation  bills  of  exception,  such 
bills  of  exception,  when  signed  by  the  judge,  must  be  cer- 
tified to  the  clerk  of  the  court,  who  must  enter  them  upon 
the  order-book  of  such  court  before  they  become  a  part 
of  the  record  of  the  case.  Craft  v.  Mann,  46  W.  Va.  478. 


62         EXCEPTIONS  TO  INSTRUCTIONS. 

g.     Necessity  for  properly  certifying  bills  of  exception 

and  making  part  of  the  record. 

When  alleged  bills  of  exception  are  not  properly  certi- 
fied and  made  parts  of  the  record,  this  court  will  not  con- 
sider the  grounds  of  error  thereby  presented.  Furbee  v. 
Shay.  40  W.  Va.  736. 

h.     When  bills  of  exception  must  be  noted,  certified  and 

recorded. 

A  bill  of  exceptions  executed  in  the  term  must  be  noted 
in  the  record  not  later  than  the  term  of  judgment.  If  in 
vacation,  it  must  be  executed  and  certified  as  executed, 
and  ordered  to  be  made  a  part  of  the  record  by  the  judge 
within  thirty  days  after  the  end  of  the  term  of  final  judg- 
ment, and  the  certificate  must  be  recorded  in  the  law-order 
book,  though  such  recordation  need  not  be  within  the 
thirty  days;  otherwise,  the  bill  will  not  be  treated  as  a 
part  of  the  record.  Wells  v.  Smith,  49  W.  Va.  78. 

4.       NECESSITY   FOR  SIGNATURE   OF  TRIAL-JUDGE. 

a.  Effect  of  want  of  signature. 

b.  Authority  of  special  judge  to  sign. 

a.  Effect  of  want  of  signature. 

A  bill  of  exceptions  must  be  signed  by  the  judge,  else  it 
cannot  be  considered  in  the  appellate  court.  Adkins  v. 
Insurance  Co.,  45  W.  Va,  384. 

b.  Authority  of  special  judge  to  sign. 

A  judge  selected  under  the  provisions  of  chapter  112, 
Code,  to  try  a  certain  case,  who  does  try  such  case,  be- 
comes the  court  with  regard  to  such  case  for  all  purposes, 


EXCEPTIONS  TO  INSTRUCTIONS.  63 

and  may  sign  bills  of  exceptions  therein  within  thirty 
days  after  the  adjournment  of  the  term,  at  which  the  trial 
is  had,  in  all  respects  as  though  he  were  the  regular  judge 
of  such  court.  Carper  v.  Cook,  39  W.  Va.  346. 

I 

5.       CERTIFYING    THE    EVIDENCE. 

a.  Necessity  for  certifying  all  the  evidence. 

b.  Certifying  the  facts  and  not  the  evidence  not 

prohibited. 

c.  Necessity  for  certifying  either  the  facts  or  the 

evidence. 

d.  How  objection  to  admission  of  evidence  made 

available. 

e.  Compelling  trial-courts  to  sign  bills  of  excep- 

tions. 

f.  Same — Effect  of  answer  to  rule — Requirements 

to  sign  and  certify  proper  bills  of  exception. 

g.  Stenographic  reports — How  made  part  of  the 

record. 

h.  Same — Consideration  of  when  made  part  of 
certificate  of  evidence  —  Necessity  for  dis- 
tinct specifications  as  to. 

i.     Same — Skeleton  bills  of  exception. 

j.     Same  —  Time    within    which    to    certify    and 

k.  After-discovered  evidence — Effect  of  failure  to 
certify. 

a.     Necessity  for  certifying  all  the  evidence. 

Under  section  9,  chapter  131,  Code,  when  exception  is 
taken  to  the  action  or  opinion  of  the  court  upon  a  ques- 
tion involving  evidence  upon  a  motion  for  a  new  trial,  or 
otherwise,  all  the  evidence,  whether  conflicting  or  not, 


64  EXCEPTIONS  TO  INSTRUCTIONS. 

inus.t  be  certified,  and  this  court  must  consider  all  such 
evidence  on  both  sides,  though  conflicting,  not  rejecting 
any. 

If,  upon  such  evidence,  the  finding  of  the  jury  plainly 
appears  to  be  contrary  to  the  evidence,  or  without  suffi- 
cient evidence,  or  plainly  against  the  decided  and 
clear  preponderance  of  evidence,  it  ought  to  be  set 
aside,  even  though  the  evidence  be  conflicting.  Laidley  v. 
County  Court,  44W.  Ya.  566. 

b.  Certifying  facts  and  not  the  evidence  not  prohibited. 
Section  9,  chapter  131,  Code,  does  not  prohibit  the 

supreme  court  of  appeals  from  considering  a  case  where 
the  facts  proven  on  the  trial,  and  not  the  evidence,  are 
certified.  King  v.  Jordan,  46  W.  Va.  106. 

c.  Necessity  for  certifying  either  the  facts  or  the  evi- 

dence. 

Where  a  motion  is  made  in  the  circuit  court  to  set  aside 
a  verdict  on  the  ground  that  the  same  is  contrary  to  the 
evidence,  and  the  court  fails  to  certify  all  the  evidence 
offered  or  all  the  facts  proved,  this  court  cannot  review 
or  reverse  the  judgment  for  that  cause.  Ilsley  v.  Wilson, 
42  W.  Va.  758. 

d.  How    objection    to    admission    of    evidence    made 

available. 

To  make  available  in  the  appellate  court  an  objection 
taken  during  the  trial  to  the  admission  of  evidence,  the 
point  must  be  made  and  properly  saved  by  some  bill 
of  exceptions.  It  is  not  enough  merely  to  note  the  ob- 
jection and  exception  in  the  certificate  of  evidence.  State 
v.  Harr,  38  W.  Va.  59. 


EXCEPTIONS  TO  INSTRUCTIONS.  65 

e.  Compelling  trial-courts  to  sign  bills  of  exception — 

What  petition  must  set  forth. 

If  an  inferior  court  erroneously  refuse  to  sign  a  bill  of 
exceptions  to  its  judgment  in  granting  or  overruling  a 
motion  for  a  new  trial,  on  the  ground  that  the  verdict  is 
or  is  not  warranted  by  the  evidence,  it  may  be  compelled  to 
do  so  by  mandamus  from  the  appellate  court;  but  it  will 
not  be  required  to  do  so,  unless  the  facts  or  the  evidence, 
which  it  is  alleged  the  court  erroneously  refused  to  certi- 
fy, are  set  forth  in  the  petition  for  the  mandamus  or  in 
some  other  proper  manner  brought  before  the  appellate 
court,  so  that  it  may  determine  therefrom  whether  or  not 
a  prima  facie  case  of  error  has  been  affirmatively  made 
out.  Otherwise,  the  writ  of  mandamus  nisi  will  not  be 
awarded.  Moragn  v.  Fleming,,  24  W.  Va.  187. 

f.  Same — Effect   of  answer  to   rule — Requirements   to 

sign  and  certify  proper  bills  of  exception. 
A  judge  will  not  be  compelled  by  mandamus  to  sign  a 
particular  bill  of  exceptions,  when  he  alleges  in  his 
answer  to  a  rule  in  this  court  that  such  bill  does  not  truly 
state  the  facts.  The  judge  has  sole  power  in  determining 
whether  such  bill  is  true  or  not.  His  return  to  the  writ 
is  conclusive  on  this  point  and  cannot  be  traversed.  It 
is  necessary,  however,  that  he  should  settle  and  sign 
a  proper  bill,  which  he  must  certify,  and  which  does  con- 
tain the  facts  and  the  truth.  Cummings  v.  Armstriong, 
34  W.  Va.  1. 

g.  Stenographic  reports — How  made  part  of  the  record. 
Evidence  taken  down  and  transcribed  by  a  shorthand 

reporter  is  not  a  part  of  the  record,  and  can  only  be  made 
so,  by  a  proper  bill  of  exceptions.  Tracey  v.  Coal  Co.,  58 
W.  Va. . 


(J6  EXCEPTIONS  TO  INSTRUCTIONS. 

h.  Same — Consideration  of  when  made  part  of  certificate 
of  evidence — Objections  to  evidence  and  ruling  of 
court — Necessity  for  distinct  specifications  as  to. 
Where  a  stenographic  report  of  evidence  is  made  part 
of  the  certificate  of  evidence  upon  a  motion  for  a  new 
trial,  and  it  shows  objections  to  questions  or  evidence, 
and  rulings  of  the  court  thereon,  and  that  such  rulings 
were  excepted  to,  and  the  particular  question  or  evidence 
complained  of  is  specified  distinctly  in  the  motion  for  a 
new  trial,  or  in  an  assignment  of  error,  or  in  brief  of  coun- 
sel, so  that  the  appellate  court  can  readily  and  safely 
find  the  particular  question  or  evidence  to  which  the  ex- 
ception relates,  the  appellate  court  will  consider  the 
matter  excepted  to,  though  there  be  no  formal  bill  of 
exceptions  thereto;  but  such  matter  will  not  be  con- 
sidered without  such  specification,  even  though  such  re- 
port of  evidence  notes  such  objection  and  exception.  Kay 
v.  Railroad  Co.,  47  W.  Va.  467. 

i.    Same — Skeleton  bills  of  exceptions. 

A  skeleton  bill  of  exceptions  may  be  adopted  for  the 
purpose  of  making  evidence  taken  down  and  transcribed 
by  a  shorthand  reporter  a  part  of  the  record,  but  at  the 
same  time  the  bill  is  signed  the  evidence  must  be  actually 
transcribed,  and,  unless  it  is  attached  to  the  bill,  it  must 
bear  some  mark  of  identification,  such  as  is  required  in 
making  any  other  paper  or  document  a  part  of  such  bill. 
Tracey  v.  Coal  Co.,  58  W.  Va. . 

j.    Same — Time  within  which  to  certify  and  identify  such 

evidence. 

Where  a  skeleton  bill  of  exceptions  is  taken  for  the  pur- 
pose of  making  evidence  a  part  of  the  record,  and  where 


EXCEPTIONS  TO  INSTRUCTIONS.         67 

such  evidence  has  not  been  actually  transcribed,  or  if 
transcribed,  is  not  referred  to  in  such  way  as  to  make  it 
a  part  of  the  bill,  it  cannot,  after  the  expiration  of  thirty 
days  since  the  adjournment  of  the  term  at  which  final 
judgment  was  rendered,  be  certified  and  identified  so  as  to 
become  a  part  of  the  bill.  Tracey  v.  Coal  Co.,  58  W.  Va. 


k.    After-discovered  evidence — Effect  of  failure  to  cer- 
tify. 

Where  there  is  a  motion  to  set  aside  a  verdict  and 
grant  a  new  trial  on  the  ground  of  after-discovered  evi- 
dence, and  there  is  in  the  record  no  certificate  of  the  evi- 
dence or  facts  proven,  the  bill  of  exceptions  raising  such 
exception  will  not  be  considered  by  the  appellate  court, 
it  being  impossible  to  ascertain  whether  the  after-discov- 
ered testimony  is  merely  cumulative  or  is  of  such  a 
character  as  ought  to  produce  a  different  result  on  a  new 
trial.  Rutter  v.  Sullivan,  25  W.  Va.  427. 

6.  EXCLUDING   EVIDENCE. 

a.    Necessity  for  relevancy  of  evidence  excluded. 

A  bill  of  exception  to  the  action  of  the  court  in  exclud- 
ing the  evidence  offered  is  not  available  as  ground  of  error, 
unless  it  shows  that  the  evidence  was,  or  would  have 
been,  relevant,  material  and  important.  Snooks  v.  Wing- 
field,  52  W.  Va.  442. 

7.  WHAT    ORDER-BOOK    AND    RECORD    OF    TRIAL-COURT 

MUST  SHOW — ALTERATION  OF  THE  RECORD. 

A.    What  necessary  to  make  part  of  the  record, 
b.     Necessity  for  order  filing  bills  of  exception. 


68  EXCEPTIONS  TO  INSTRUCTIONS. 

c.  What  order  of  trial-court  must  show. 

d.  What  order  book  of  trial-court  must  show. 

e.  What  the  record  must  show. 

f.  Memoranda  made  on  record  book  of  trial-court. 

g.  Instructions  copied  into  the  record. 

h.    Copy  of  paper  attached  to  pleadings. 

i.  Reference  to  papers  that  may  be  safely  copied 
into  the  record. 

j.  Papers  purporting  to  be  part  of  bills  of  excep- 
tion. 

k.  Identification  papers  not  incorporated  into  the 
bill  of  exceptions. 

1.     Identification  of  papers  referred  to. 

m.  Alteration  of  the  record — How  record  restored 
—Inserting  matter  not  part  of  the  record. 

a.  What  necessary  to  make  part  of  the  record. 

The  mere  fact  that  a  bill  of  exceptions  appears  to  have 
been  signed  by  the  judge,  and  is  found  among  the  papers 
of  the  case,  does  not  make  it  a  part  of  the  record  of  the 
case.  To  make  such  bill  of  exceptions  a  part  of  the  rec- 
ord so  that  the  appellate  court  may  consider  it,  the  rec- 
ord of  the  proceedings  of  the  court  must  show  sub- 
stantially ,that  the  bill  of  exceptions  was  tendered,  re- 
ceived and  signed,  and  directed  to  be  made  a  part  of  the 
record.  Wickes  v.  Railroad  Co.,  14  W.  Va.  178. 

b.  Necessity  for  order  filing  bills  of  exception. 

It  is  stare  decisis  rule  of  this  court  that  a  bill  of  ex- 
ceptions copied  into  the  record,  when  there  is  no  order 
filing  the  same,  is  not  a  true  part  of  the  record, 
and  will  not  be  considered.  Mayer  v.  Frobe,  40  W.  Va 
248. 


EXCEPTIONS  TO  INSTRUCTIONS.         69 

c.  What  order  of  trial-court  must  show. 

Where  the  record  does  not  show  that  a  bill  of  ex- 
ceceptions  had  been  made  a  part  of  the  record  by  order 
of  the  court  below,  the  appellate  court  will  not  consider 
it  a  part  of  the  record,  and  will  not  look  to  it  for  any 
purpose  upon  a  writ  of  error.  Phelps  v.  Smith,  16  W.  Va. 
522. 

d.  What  order  book  of  trial-court  must  show. 

The  record  entered  in  the  law  order  book  of  a  circuit 
court  must  attest  that  a  bill  of  exception  was  executed 
and  made  part  of  the  record,  else  such  bill  cannot  be  con- 
sidered, though  inserted  in  the  record  by  the  clerk.  Ad- 
kins  v.  Insurance  Co.,  45  W.  Va.  384. 

e.  What  the  record  must  show. 

The  record  entered  in  the  law-order  book  of  a  circuit 
court  must  attest  that  a  bill  of  exception  was  executed 
and  made  part  of  the  record,  else  such  bill  cannot  be  con- 
sidered, though  inserted  in  the  record  by  the  clerk.  If 
the  record  attests  its  execution,  the  bill  will  be  considered. 
Adkins  v.  Insurance  Co.,  45  W.  Va.  384,  386. 

f.  Memoranda  made  on  record  book  of  trial-court. 

If  on  the  record-book  a  memorandum  is  made  of  ex- 
ceptions taken  by  the  plaintiff  to  the  rulings  and  decis- 
ions of  the  court,  one  of  which  is  an  exception  to  an  in- 
struction given  to  the  jury,  and  the  other  an  exception 
to  the  refusal  of  the  court  to  award  a  new  trial,  in  which 
the  evidence  is  all  certified,  upon  a  writ  of  error  this 
court  will  review  the  rulings  and  decisions  of  the  court, 
though  the  objection  to  the  refusal  of  the  court  to  award 
a  new  trial  was  not  entered  on  the  face  of  the  record- 


70         EXCEPTIONS  TO  INSTRUCTIONS. 

book,  except  by  the  noting  of  these  exceptions  and  mak- 
ing them  thus  a  part  of  the  record,  and  thus  showing 
on  their  face,  that  these  rulings  and  decisions  of  the 
court,  including  the  refusal  to  grant  a  new  trial,  were 
objected  to  by  the  plaintiff.  Van  Winkle  v.  Blackford, 
28  W.  Va.  671. 

g.     Instructions  copied  into  the  record. 

Instructions  copied  into  the  record,  when  there  is  no 
bill  of  exceptions  or  order  of  the  court  referring  to  them, 
will  not  be  regarded  as  part  of  the  record.  Winters  v. 
Null,  31  W.  Va.  450. 

h.    Copy  of  paper  attached  to  pleadings — Presumption  as 

to. 

A  copy  of  a  paper  attached  to  a  pleading  in  the  case 
which  purports  to  be  the  same  as  the  paper  mentioned  in 
the  bill  of  exceptions,  does  not  make  it  a  part  of  that 
bill,  nor  can  this  court  presume  that  it  is  the  same 
paper  read  in  evidence  and  excepted  to.  McKendree  v. 
Shelton,  51  W.  Va.  516. 

i.    Reference  to  papers  that  may  be  safely  copied  into  the 

record. 

When  a  bill  of  exceptions  makes  such  reference  to  a 
paper  as  will  enable  it  to  be  safely  copied  into  the  rec- 
ord, and  acted  on  as  a  true  paper,  said  reference  makes 
said  paper  a  part  of  said  bill.  Gunn  v.  Railroad  Co.,  37 
W.  Va.  421. 

j.     Papers  purporting  to  be  part  of  bills  of  exception. 

A  paper  purporting  to  be  a  bill  of  exceptions  and  copied 
into  the  record  as  such,  will  not  be  regarded  or  treated  by 


EXCEPTIONS  TO  INSTRUCTIONS.         71 

the  appellate  court  as  a  part  of  the  record,  unless  the  rec- 
ord shows  that  it  was  by  some  order  or  memorandum  en- 
tered on  the  order  book  of  the  trial-court,  made  a  part 
of  the  record.  Koontz  v.  Koontz,  47  W.  Va.  31. 

k.    Identification  of  papers  not  incorporated  in  the  bill  of 

exceptions. 

When  a  paper  which  is  to  constitute  a  part  of  a  bill  of 
exceptions  is  not  incorporated  into  the  body  of  the  bill, 
it  must  be  annexed  to  it,  or  so  marked  by  letter,  or  other 
means  of  identification  mentioned  in  the  bill,  as  to  leave 
no  doubt,  when  found  in  the  record,  that  it  is  the  one 
referred  to  in  the  bill  of  exceptions,  otherwise  it  will  be 
disregarded.  McKendree  v.  Shelton,  51  W.  Va.  516. 

1.     Identification  of  papers  referred  to. 

Where  a  record  or  other  writing  makes  such  reference 
to  another  writing  by  number,  or  other  earmark,  so 
that  it  may  be  safely  identified,  that  makes  such  writ- 
ing a  part  of  the  record  or  writing  referring  to  it.  Hughes 
v.  Frum,  41  W.  Va.  446. 

m.  Alteration  of  the  record — How  record  restored — In- 
serting matter  not  part  of  the  record. 
If  a  record  of  a  circuit  court  has  been  altered,  it 
can  be  restored  to  its  original  state  only  in  that  court, 
and  not  by  the  supreme  court  on  writ  of  error  or  appeal ; 
though  when  so  retored  in  the  circuit  court,  and  certified 
to  the  supreme  court,  it  will  be  there  treated  as  in  its 
true  and  restored  state.  But  where  a  bill  of  exceptions 
or  memorandum  of  such  bill,  or  any  document,  is  in- 
serted in  a  transcript  of  the  record,  which  is  no  part  of 
the  record,  that  fact  may  be  shown  in  the  supreme  court, 


72  SETTING  ASIDE  THE  VERDICT. 

and  will  be  treated  as  no  part  of  the  record.     Wells  v. 
Smith,  49  W.  Va.  79. 

8.      SETTING  ASIDE  THE  VERDICT. 

a.  Necessity  for  motion  for — Waiver  of  errors. 

b.  Same — Waiving  exceptions. 

c.  When  the  judgment  is  plainly  right. 

d.  When  the  verdict  is  not  supported  by  the  evi- 

dence. 

e.  How  verdict  regarded  by  appellate  court. 

f.  Verdict  based  on  mere  conjecture — Burden  of 

proof. 

g.  Weighing  the  evidence  by  the  appellate  court, 
h.     Preponderance  of  evidence. 

i.  Irrelevant  evidence, 

j.  Conflicting  evidence, 

k.  Wholly  insufficient  evidence. 

1.  Illegal  evidence. 

in.  Newly  discovered  evidence — Presumption  as  to. 

n.  Harmless  error. 

a.  Necessity  for  motion  for. — Waiver  of  errors. 

In  a  case  tried  by  a  jury,  no  matter  how  many  excep- 
tions are  taken  to  rulings  of  the  court  during  the  trial, 
unless  a  motion  is  made  in  the  trial-court  to  set  aside 
the  verdict,  and  that  motion  is  overruled  and  an  excep- 
tion taken,  or  objection  made  to  the  overruling  of  such 
motion  is  noted  on  the  record,  all  such  errors  will,  by  the 
appellate  court,  be  deemed  to  have  been  waived.  State 
v.  Thompson,  26  W.  Va.  150. 

b.  Same — Waiving  exceptions. 

Where  exceptions  are  taken  during  the  trial  to  the 


SETTING  ASIDE  THE  VERDICT.  73 

judgment  of  the  court  in  giving  or  refusing  to  give  in- 
structions to  the  jury,  or  in  admitting  or  rejecting  evi- 
dence, unless  a  motion  is  made  in  the  trial-court  to  set 
aside  the  verdict,  and  that  motion  is  overruled,  the  appel- 
late court  will  regard  such  exceptions  as  waived  and 
will  not  review  the  rulings.  Brown  v.  Brown,  29  W.  Va. 
777. 

c.  When  the  judgment  is  plainly  right. 

Where,  on  consideration  of  the  whole  record,  the  judg- 
ment is  plainly  right,  this  court  will  not  reverse  the 
judgment  for  errors  of  law,  which  if  not  committed,  would 
not  have  produced  a  different  result.  Bank  v.  Napier,  41 
W.  Va.  482. 

d.  When  the  verdict  not  supported  by  the  evidence. 
Where  the  verdict  of  a  jury  is  wholly  without  evidence 

on  a  point  essential  to  a  finding,  or  the  evidence  is 
plainly  insufficient  to  warrant  such  finding  by  the  jury, 
the  same  should  be  set  aside  and  a  new  trial  awarded. 
Vintroux  v.  Simms,  45  W.  Va.  548. 

e.  How  verdict  regarded  by  appellate  court. 

The  verdict  of  a  jury  will  be  held  sacred  by  this  court 
unless  there  is  a  plain  preponderance  of  credible  evi- 
dence against  it,  evincing  a  miscarriage  of  justice  from 
some  cause,  such  as  prejudice,  bias,  undue  influence, 
misconduct,  oversight,  or  misconception  of  the  facts  or 
law.  Young  v.  R.  R.  Co,.  44  W.  Va.  218. 

f.  Verdict  based  on  mere  conjecture — Burden  of  proof. 
A   verdict   based   alone  on   mere   conjecture,    without 

evidence  to  support  it,  where  the  rule  as  to  the  burden  of 


74  SETTING  ASIDE  THE  VERDICT. 

proof  requires  some  reliable  affirmative  evidence,  should 
not  be  permitted  to  stand.  Robinson  v.  Railroad  Co.,  40 
W.  Va.  583. 

g.     Weighing  the  evidence  by  the  appellate  court. 

Why  have  juries  if  appellate  judges  are  to  go  into 
the  weighing  of  evidence  as  if  by  the  ounce  or  pound? 
We  ought  not  do  this.  It  is  an  abuse  of  power  and  a 
misconception  of  our  functions  and  of  the  jury  function. 
The  jury  institution  is  sacred  under  our  Constitution 
and  a  verdict  is  to  be  highly  respected.  State  v.  Bowyer, 
43  W.  Va.  182. 

h.     Preponderance  of  evidence. 

When  the  evidence  plainly,  clearly  and  decidedly  pre- 
ponderates against  the  verdict  of  the  jury  this  court 
will  grant  a  new  trial.  Limer  v.  Traders  Co.,  44  W.  Va. 
175. 

i.    Irrelevant  evidence. 

To  authorize  the  reversal  of  a  judgment,  for  the  reason 
that  irrelevant  evidence  has  been  admitted,  the  evidence 
must  not  only  be  irrelevant,  but  it  must  be  of  such  a 
nature,  that  its  admission  may  have  prejudiced  the  ex- 
ceptor.  State  v.  Kinney,  26  W.  Va.  141. 

j.    Conflicting  evidence — Weight  of  evidence. 

Though  evidence  is  conflicting,  the  court  may  set  aside 
the  verdict  if  against  the  weight  of  the  evidence ;  but  such 
power  should  be  exercised  cautiously.  When  the  court 
does  so,  its  action  is  regarded  with  peculiar  respect  in  an 
appellate  court  and  will  not  be  reversed  unless  plainly 
wrong.  Crogan  v.  Railroad  Co.,  39  W.  Va.  415. 


SETTING  ASIDE  THE  VERDICT.  75 

k.    Wholly  insufficient  evidence. 

Where  the  court  which  tries  a  case  certifies  all  the 
evidence  adduced  on  the  trial,  and  from  the  evidence  so 
certified  it  clearly  appears  that  it  was  wholly  insufficient 
to  sustain  the  verdict,  this  court  will  set  aside  the 
verdict,  and,  in  a  proper  case,  award  a  new  trial. 
State  v.  Zeigler,  40  W.  Va.  594. 

1.    Illegal  evidence — Presumption  as  to. 

Where  illegal  evidence  is  admitted,  against  the  objec- 
tion of  a  party,  it  will  be  presumed  that  it  prejudiced  such 
party,  and  if  it  may  have  prejudiced  him,  though  it  be 
doubtful  whether  it  did  or  not,  it,  it  will  be  cause  for  re- 
versal of  the  judgment;  but  if  it  clearly  appear  that  it 
could  not  have  changed  the  result, — that  if  it  had  been  ex- 
cluded, the  same  result  would  have  followed, — it  will 
not  be  cause  for  reversing  the  judgment.  Taylor  v.  Rail- 
road Co.,  33  W.  Va.  40. 

m.    Newly  discovered  evidence — Presumption  as  to. 

A  new  trial  will  not  be  granted  on  the  ground  of  new- 
ly discovered  evidence  unless  the  case  comes  within 
the  following  rules : 

1.  The  evidence  must  appear  to  have  been  discovered 
since  the  trial,  and,  from  the  affidavit  of  the  new  wit- 
ness, what  such  evidence  will  be,  or  its  absence  satis- 
factorily explained. 

2.  It  must  appear  from  facts  stated  in  his  affidavit 
that  the  party  seeking  a  new  trial  was  diligent  in  ascer- 
taining and  securing  his  evidence,  and  that  the  new  evi- 
dence is  such  that  due  diligence  would  not  have  secured  it 
before  verdict. 

3.  Such  evidence  must  be  new  and  material,  and  not 


76  SETTING  ASIDE  THE  VERDICT. 

merely  cumulative ;  and  cumulative  evidence  is  additional 
evidence  of  the  same  kind  to  the  same  point. 

4.  The  evidence  must  be  such  as  ought  to  produce  an 
opposite  result  at  a  second  trial  on  the  merits. 

5.  -And  the  new  trial  will  be  generally  refused  when 
the  sole  object  of  new  evidence  is  to  discredit  or  im- 
peach a  witness  on  the  opposite  side.    Halstead  v.  Horton, 
38  W.  Va.  727. 

n.    Harmless  error. 

An  error  which  does  not  prejudice  a  party  cannot  be 
made  the  cause  of  a  reversal  of  a  judgment.  Long  v. 
Ferine,  44  W.  Va.  243. 


CHAPTERS  AND  SUBJECTS-PART  II. 


CHAPTER  1.— ACCORD  AND  SATISFACTION,  77. 
CHAPTER  2— ADVERSE  POSSESSION,  80. 

1.  COLOR     OB     CLAIM     OF     TITLE — SOUBCE     OF     TITLE — BOUNDARY 

LINES,     80 

2.  ACTUAL     POSSESSION WHAT     REQUIRED     TO     SUPPORT     CLAIM 

OF,    84. 

3.  QUANTITY    OF   LAND    CONVEYED CONVEYANCES    BY    METES    AND 

BOUNDS,    88. 

4.  HOSTILITY    IN    INCEPTION CONTINUED    HOSTILITY,    88. 

5.  CONTINUITY   OF    POSSESSION,    92. 

6.  PAYMENT      OF      TAXES FORFEITUBE      FOR      NON-PAYMENT      OF 

TAXES,    93. 

7.  STATUTE   OF   LIMITATIONS,    97. 

CHAPTER  3— AGENCY,  98. 

CHAPTER  4— ASSAULT  AND  BATTERY,  102, 
CHAPTER  5— ASSIGNMENT   FOR   BENEFIT   OF  CRED- 
ITORS, 104. 

CHAPTER  6— ATTACHMENTS,  106. 
CHAPTER  7— ATTEMPT,  107. 
CHAPTER  8— AWARDS,  107. 
CHAPTER  9— BETTING  AND  GAMING,  108. 
CHAPTER  10— BILLS  OF  LADING,  109. 
CHAPTER  11— BONDS,  112. 
CHAPTER  12— BOOMS  AND  DAMS,  113. 
CHAPTER  13— BURGLARY,  118. 
CHAPTER  14— CARRIERS,  122. 

A.  CARRIERS  OF  FREIGHT,  122. 

B.  CARRIERS  OF  LIVE  STOCK,  125. 

C.  CARRIERS  OF  PASSENGERS,  129. 

D.  EQUIPMENTS,  139. 

E.  CONTRIBUTORY  NEGLIGENCE,  139. 

CARRIERS  OF  PASSENGERS. 

1.  DEGREE     OF     CARE     AND     LIABILITY     OF     CARRIERS     IN     GEN- 

ERAL.   129. 

2.  THE  RELATION  OF  CARRIERS  AND  PASSENGERS,  132. 

3.  ARREST  OF  PASSENGERS,  133. 

4.  EJECTION  OF  PASSENGERS.  135. 

CHAPTER  15— CIVIL    DAMAGE    ACT,    144. 
CHAPTER  16— CONDEMNATION    PROCEEDINGS,    146. 

1.  MAIN    LINES    OF    RAILROADS,    146. 

2.  BRANCH    OR    LATERAL    LINES    OF    RAILROADS,    149. 

3.  FOR  PURPOSES  OF   RAILROAD   BRIDGES.    151. 


li  CHAPTERS— PART  II. 

CHAPTER  17— CONSPIRACY,  152. 
CHAPTER  18— CONTRACTS,  154. 

1.  WBITTEN   CONTRACTS,    154. 

2.  MODIFICATION    OF    CONTRACTS,    167. 

3.  SEPARATE    AND    DISTINCT    CONTRACTS,    169. 

CHAPTER  19— COUNTIES,  170. 
CHAPTER  20— COVENANTS,  171. 
CHAPTER  21— CRIMINAL  LAW,  172. 

1.  PRESUMPTION   OF   INNOCENCE,    172. 

2.  REASONABLE    DOUBT,    173. 

3.  CIRCUMSTANTIAL  EVIDENCE,    177. 

4.  CHARACTER    AND    MOTIVE    OF    WITNESSES,    178. 

5.  CREDIBILITY   OF   WITNESS — WEIGHT  OF  EVIDENCE,    180. 

6.  INSANITY    AND    INTOXICATION — MENTAL    CAPACITY,    182. 

7.  ALIBI,   185. 

8.  ADMISSION    AND    CONFESSIONS,    186. 

9.  DEGREES    OF    PUNISHMENT,    186. 

CHAPTER  22— DAMAGES,    187. 

I.     GENERAL  PRINCIPLES,  187. 

II.     EXEMPLARY,     PUNITIVE     OR    VINDICTIVE     DAM- 
AGES, 195. 

IIL     COMPENSATORY    DAMAGES  —  HOW    ESTIMATED 
AND   FIXED,   203. 

1.  AGAINST   RAILROAD     COMPANIES,     204.     . 

2.  AGAINST'  MUNICIPAL     CORPORATIONS,      207. 

3.  AGAINST   MASTER      FOR      INJURIES       SUSTAINED      BY      SER- 

VANTS,   208. 

4.  AGAINST  LANDLORDS,     209. 

5.  AGAINST   STEAMBOAT    COMPANIES.     210. 

6.  AGAINST  PERSONS     TAKING     PROPERTY     WITHOUT     OWNERS 

CONSENT,    210. 

7.  AGAINST  BRIDGE     COMPANY,     210. 

8.  AGAINST   BOOM  COMPANIES,  212. 

9.  AGAINST   PULP    MILL    OWNERS,     213. 

CHAPTER  23— DEEDS,  213. 

CHAPTER  24— DETINUE,  215. 

CHAPTER  25— DRUGS  AND  DRUGGISTS,  215. 

CHAPTER  26— DURESS,  217. 

CHAPTER  27— EJECTMENT,  219. 

CHAPTER  28— ELECTRICAL  COMPANIES,  226. 

CHAPTER  29— EXEMPTIONS,  232. 

CHAPTER  30— EXPLOSFONS,  232. 

CHAPTER  31— EXPLOSIVES,  233. 

CHAPTER  32— FALSE  ARREST  AND  IMPRISONMENT,  234. 

CHAPTER  33— FALSE  REPRESENTATION,  236. 

CHAPTER  34— FERRIES,  237. 

CHAPTER  35— FLOATABLE  STREAMS,  237. 


CHAPTERS— PART  II.  ill 

CHAPTER  36— FORGED    INSTRUMENTS— FORGERY,    239. 
CHAPTER  37— GIFTS,  241. 
CHAPTER  38— HOMICIDE,  243. 

I.     MURDER    -  -    ITS      ELEMENTS      AND      ITS      INCI- 
DENTS, 243. 

II.     MANSLAUGHTER— VOLUNTARY      AND      INVOLUN- 
TARY, 249. 

III.  EXCUSE  AND   JUSTIFICATION,   251. 

1.  EIGHT   TO    KILL   IN    DEFENSE   OF    PERSON,    251. 

2.  WHEN  PLEA  OF  SELF  DEFENSE  NOT  AVAILABLE,   255. 

3.  BIGHT  TO  KILL  IN  DEFENSE  OF  FAMILY  OB  HABITATION,  258. 

4.  BIGHT   TO   KILL   IN   DEFENSE   OF   ANOTHER,    259. 

5.  BIGHT  TO  KILL  TO  PBEVENT  A  FELONY,   260 

6.  INTOXICATION    AND    INSANITY,    260. 

7.  AGE  FOB  CAPACITY   TO  COMMIT   CBIME,    263. 

IV.  DEGREES      OF      OFFENSE    -  -    PUNISHMENT      IM- 

POSED, 262. 

CHAPTER  39— HOUSE  OF  ILL  FAME,  263. 
CHAPTER  40— INSURANCE,  265. 
I.  FIRE  INSURANCE,  265. 

1.  THE  POLICY  OB  CONTBACT,  265. 

2.  PBOOF  OF  LOSS,  278. 

3.  WAIVEB  OF  BIGHT  TO   AVOID   PAYMENT  OF  LOSS,    280. 

II.  LIFE  INSURANCE,  283. 
III.  ACCIDENT  INSURANCE,  284. 
CHAPTER  41— INTOXICATING  LIQUORS,  287. 
CHAPTER  42— LANDLORD  AND  TENANT,  288. 
CHAPTER  43— LARCENY,  289. 
CHAPTER  44— LIBEL  AND  SLANDER,  291. 
CHAPTER  45— LIMITATION  OF  ACTIONS,  292. 
CHAPTER  46— LOGS  AND  LOGGING,  293. 
CHAPTER  47— MALICIOUS  PROSECUTIONS,  296. 
CHAPTER  48— MARRIED  WOMEN,  302. 
CHAPTER  49— MASTER  AND  SERVANT,  304. 

1.  NATUBE    AND   EXTENT   OF    MASTER'S    LIABILITY,    304. 

2.  MACHINERY,   APPLIANCES,   MATERIAL  AND   PLACE  TO   WOBK,   307. 

3.  BOAD   BEDS   AND   TRACKS,    312. 

4.  WARNING,   INSTBUCTIONS   AND  GIVING  ORDERS   TO   SERVANTS,  315. 

5.  FELLOW  SERVANTS,   317. 

6.  RISKS    ASSUMED    BY    SERVANTS,    318. 

7.  CONTRIBUTORY    NEGLIGENCE,    325. 

CHAPTER  50— MESNE  PROFITS,   333. 
CHAPTER  51— MUNICIPAL  CORPORATIONS,   334. 

1.  DEFECTIVE    STREETS   AND   SIDEWALKS.    334. 

2.  CHANGING  GRADE  OF  STREETS,   342. 

3.  SUBFACE    WATERS — DRAINS    OR    SEWERAGE,    346. 

CHAPTER  52— NATURAL  GAS,  348. 


iv  CHAPTERS— PART  II. 

CHAPTER  53— NEGOTIABLE    INSTRUMENTS,    354. 

CHAPTER  54— NUISANCE,  356. 

CHAPTER  55— OIL  AND   GAS   LEASES,   357. 

CHAPTER  56— OIL  WELLS,  357. 

CHAPTER  57— PARENT  AND  CHILD,  359. 

1.  SALE   OF    IXTOXICATIXG   LIQUORS    TO    MINORS,    359. 

2.  SEDUCTION    OF    MINOR,    361. 

CHAPTER  58— PHYSICIANS  AND  SURGEONS,  362. 
CHAPTER  59— RAILROADS   AND   RAILROAD   COMPAN- 
IES, 363. 

I.  INJURIES  TO  PERSONS  ON  OR  NEAR  TRACK,  363. 
II.  EJECTMENT   OF   PERSONS   FROM   FREIGHT 

TRAINS,  370. 

HI.     INJURIES  TO  ANIMALS,  371. 

IV.     CAUSING  LOSS  OF  PERSONAL  PROPERTY,  373. 
V.     INJURY  TO  REAL  ESTATE,  374. 
VI.     INJURY  TO  WATERMILLS,   375. 
VII.     CONSTRUCTION     OF     CROSSINGS     AND     CATTLE 

GUARDS,  376. 

CHAPTER  60— REAL  ESTATE,  377. 
CHAPTER  61— SABBATH  BREAKING,  378. 
CHAPTER  62— SALES,   379. 

1.  CONTRACT    OF    SALE,    379. 

2.  DELIVERY    AND    ACCEPTANCE,    380. 

3.  SHIPMENT    OF    GOODS    TO    WRONG    PARTY,    381. 

4.  NON-ACCEPTANCE.    381. 

5.  TURNING    GOODS    OVER    TO    THIRD    PARTY,    383. 

6.  SHIPMENT    OF    GOODS    IN    EXCESS    OF    PURCHASE,    384. 

7.  FAILURE   OF   CARRIER   TO    DELIVER    GOODS,    385. 

8.  FALSE    REPRESENTATIONS    BY     SELLER,     386. 

CHAPTER  63— SEDUCTION,  387. 

CHAPTER  64— STREET  RAILWAYS,  388. 

CHAPTER  65— SURETYSHIP,  391. 

CHAPTER  66— SURFACE  WATER,  392. 

CHAPTER  67— TELEGRAPH  AND  TELEPHONE  COMPANIES, 

393. 

I.  TELEGRAPH  COMPANIES,  393. 
II.  TELEPHONE  COMPANIES,  395. 
CHAPTER  68— TRESPASS,  397. 

CHAPTER  69— TROVER  AND  CONVERSION,  397. 
CHAPTER  70— TURNPIKE  COMPANIES,  398. 
CHAPTER  71— UNLAWFUL  ENTRY  AND  DETAINER,  399. 
CHAPTER  72— WATER  AND  WATER  COURSES,  404. 
CHAPTER  73— WILLS,  406. 
CHAPTER  74— WITNESSES,  420. 


PART  II. 

FORMS  OF  INSTRUCTIONS. 


CHAPTER  1. 
ACCORD  AND  SATISFACTION. 

a.  What  may  be  pleaded. 

b.  When  acceptance  by  creditor  of  order  operates  as 

full  satisfaction  of  debt. 

c.  When  creditor  liable  to  debtor  for  negligence  in 

collecting  collateral  accepted  in  discharge  of  debt. 

d.  How  plea  established. 

e.  When  receipt  given  by  plaintiff  does  not  bar  right 

of  recovery. 

a.    What  may  be  pleaded. 

The  court  instructs  the  jury  that  anything  of  legal 
value,  whether  those  in  possession  or  in  action,  that  is, 
any  legal  interest  or  right  which  the  creditor  had  before 
agreed  to  receive  and  actually  received  in  full  satisfac- 
tion of  the  debt,  is  a  good  satisfaction,  without  regard 
to  the  comparative  magnitude  of  the  satisfaction  with 
the  original  debt,  and  may  be  pleaded  as  accord  and  satis- 
faction. Bank  v.  Kimb&rlands,  16  W.  Va.  569. 


78  ACCORD  AND  SATISFACTION. 

b.  When  acceptance  by  creditor  of  order  operates  as  full 

satisfaction  of  debt. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  order  for  f —  -  given  in  evidence 
in  this  case  was  drawn  by  the  defendant,  -  — , 

in  favor  of  the  plaintiff  upon  a  fund  in  the  hands  of  the 
-  company,  belonging  to  or  payable  to  the 
said  defendant,  and  that  the  said  order  for  f —  -  was 
delivered  by  the  said  defendant  or  some  one  in  his  behalf 
and  by  his  authority,  to  the  plaintiff  in  discharge  and 
satisfaction  of  the  notes  here  sued  upon,  and  was  received 
by  the  plaintiff  in  discharge  and  satisfaction  of  said  notes, 
that  such  delivery  by  the  said  defendant  and  receipt  by 
the  plaintiff  would  operate  in  law  as  a  full  discharge  and 
satisfaction  of  said  notes.  Bank  v.  Kiniberlands,  16  W. 
Va.  569. 

c.  When  creditor  liable  to  debtor  for  negligence  in  col- 

lecting collateral  accepted  in  discharge  of  debt. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  order  for  f —  -  given  in  evidence 
in  this  cause  was  drawn  by  the  defendant  in  favor  of  the 
plaintiff  upon  a  fund  in  the  hands  of  -  — ,  belonging 
or  payable  to  the  said  defendant  and  sufficient  to  leave 
a  surplus  after  paying  the  orders  in  favor  of  -  — ,  - 

and  -    — ,  mentioned  in  said  order  for  f ,  and  that 

said  order  for  f —  -  was  delivered  by  said  defendant,  or 
some  one  on  his  behalf  and  by  his  authority,  to  the  plain- 
tiff as  collateral  security  for  the  payment  of  the  notes 
here  sued  upon,  then  it  would  be  the  duty  of  the  plain- 
tiff to  use  reasonable  care  and  diligence  to  make  the 
said  security  available  for  the  purpose  for  which  it  had 
so  been  delivered  and  received,  and  if  the  plaintiff,  by 
negligence  or  any  wrongful  act  or  omission  on  his  part, 
thereafter  rendered  the  said  security,  in  whole 


ACCORD  AND  SATISFACTION.  79 

or  in  part,  unavailable  for  the  purpose  for  which  it  had 
been  so  delivered  and  received,  the  loss,  if  any,  thus  caused 
should  be  borne  by  the  plaintiff,  and  the  defendants  would 
be  discharged  to  the  extent  of  the  injury  they  sustained 
from  such  negligence  or  misconduct  of  the  plaintiff. 
Bank  v.  Kimberlands,  16  W.  Va  570. 

d.  How  plea  established. 

The  court  instructs  the  jury  that  to  establish  the 
plea  of  accord  and  satisfaction,  the  defendants 
must  show  that  the  subject  matter  of  this 
action  (that  is  the  arrest  and  imprisonment  of  the 
plaintiff)  was  accorded  between  the  plaintiff  and  —  — , 
and  that  the  plaintiff  agreed  to  and  did  accept  the  - 
dollars  mentioned  in  the  said  receipt,  in  full  satisfaction 
of  the  cause  of  action  in  the  declaration  mentioned. 
Bloss  v.  Plymale,  3  W.  Va.  399. 

e.  When  receipt  given  by  plaintiff  does  not  bar  right  of 

recovery. 

The    court    instructs    the    jury    unless    they    believe 
from     the     evidence     that  — ,     was     a     co-tres- 

passer with  the  present  defendants  in  this  ac- 
tion, in  the  arrest  and  imprisonment  of  the  plaintiff 
in  the  declaration  mentioned,  then  the  receipt  read  in 
evidence  in  this  cause,  given  by  -  — ,  (the  plaintiff)  to 
— ,  does  not  operate  to  bar  plaintiff's  right  of  re- 
covery herein.  Bloss  v.  Playmate,  3  W.  Va.  400. 


80  ADVERSE  POSSESSION. 

/ 

CHAPTER  2. 

ADVERSE  POSSESSION. 

1.  COLOR      OR      CLAIM      OF      TITLE — SOURCE      OF      TITLE 

BOUNDARY   LINES. 

2.  ACTUAL      POSSESSION — WHAT      REQUIRED     TO      SUPPORT 

CLAIM  OF. 

3.  QUANTITY      OF      LAND      CONVEYED  —  CONVEYANCES      BY 

METES    AND    BOUNDS. 

4.  HOSTILITY     IN     INCEPTION CONTINUED     HOSTILITY. 

5.  CONTINUITY   OF  POSSESSION. 

6.  PAYMENT    OF    TAXES — FORFEITURE    FOR    NON-PAYMENT 

OF    TAXES. 

7.  STATUTE   OF   LIMITATIONS. 

1.   COLOR  OR  CLAIM  OF  TITLE — SOURCE  OF  TITLE BOUN- 
DARY LINES. 

a.  What  party  relying  on  under  color  or  claim  of  title 

must  show. 

b.  Same — Not  necessary  that  evidence  of  title  be  in 

writing — Specified  boundaries. 

c.  Color  of  title — Character  of  deed  which  gives  color 

of  title. 

d.  Distinction   between   claim  of  title   and   color  of 

title — Claim  of  title — Limitation  of  adverse  hold- 
ings under — Color  of  title — Limitation  of  ad- 
verse holdings  under. 

e.  Deed  conveying  title — Effect  of  delivery  of. 

f.  Same — When  statute  of  limitations  begins  to  run. 

g.  Source  of  title — Conflicting  title  arising  from  same 

source, 
h.     Boundary  lines. 


ADVERSE   POSSESSION.  81 

a.  What  party  relying  on  under  color  or  claim  of  title 

must  show. 

The  court  instructs  the  jury  that  the  party  who  relies 
on  adverse  possession  of  land,  under  color  or  claim  of 
title,  to  defeat  the  legal  owner  of  the  land  must  show: 

1.  His  color  or  claim  of  title  and  that  it  covers  the 
land,  or  a  part  of  the  land,  in  controversy. 

2.  That  he  entered  under  said  claim  or  color  of  title 
upon  said  land  in  controversy,  or  some  part  thereof. 

3.  That  his  entry  was  hostile  and  adverse  to  the  party 
having  the  legal  title  and  was  actual,  visible  and  exclusive. 

4.  Must  have  so  continued  hostile,  actual,  visible,  and 
exclusive,  unbroken,  under  said  color  or  claim  of  title 
for  ten  years  before  the  commencement  of  the  action  to 
dispossess  him.    Maxwell  v.  Cunningham,  50  W.  Va.  302. 

b.  Same — Not  necessary  that  evidence  of  title  be  in  writ- 

ing— Specified  boundaries. 

The  court  instructs  the  jury  that  color  or  claim  of 
title  which  may  be  sufficient  to  establish  title  to  land 
by  adverse  possession,  may  be  under  a  good  or  bad,  legal 
or  equitable  title;  that  it  is  not  indispensable  that  the 
claim  of  title  should  be  in  the  form  of  a  deed  or  other 
writing ;  that  the  claim,  from  its  nature  or  character,  may 
be  wholly  independent  of  any  written  evidence;  and  that 
if  a  party  have  a  deed  or  other  writing  with  a  specified 
boundary,  the  possession  which  he  may  take  and  hold 
is  not  necessarily  restricted  or  confined  to  what  shall 
prove  to  be  within  the  precise  boundary  of  such  deed  or 
writing;  he  may  take  and  hold  actual  possession  of  land 
outside  of  his  true  boundary.  Congrove  v.  Burdett,  28 
W.  A'a.  223. 

c.  Color  of  title — Character  of  deed  which  gives  color  of 

title. 
The  court  instructs  the  jury  that  a  deed  in  writing 


82  ADVERSE  POSSESSION. 

which  purports  to  convey  lands  by  metes  and  bounds 
and  pass  a  title  thereto,  is  color  of  title,  no  matter  in 
what  its  invalidity  may  consist.  Robinson  v.  Loice,  50 
W.  Va.  82. 

d.  Distinction  between  claim  of  title  and  color  of  title — 

Claim  of  title — Limitation  of  adverse  holdings  under 
— Color  of  title — Limitations  or  adverse  holdings 
under. 

The  court  instructs  the  jury  that  if  the  adverse  pos- 
session should  be  held  for  ten  years  before  the  commence- 
ment of  the  action  under  claim  of  title,  the  person  claim- 
ing adversely  will  be  limited  in  his  adverse  holdings  to 
his  actual  enclosures,  if  under  color  of  title  then  the 
adverse  holding  will  extend  to  the  boundaries  contained 
in  the  deed  or  writing  that  constitutes  his  color  of  title. 
Mii.ncell  v.  Cunningham,  50  W.  Va.  301. 

e.  Deed  conveying  title — Effect  of  delivery  of — Adverse 

possession — What  necessary  to  establish. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  land  in  controversy  is  embraced 
in  and  conveyed  by  the  deed  from  -  -  to  -  — ,  and 
they  by  said  -  -  to  the  plaintiff,  then  they  must  find 
for  the  plaintiff,  unless  they  further  believe  from  the 
evidence  that  the  defendant  had  been  in  exclusive,  ac- 
tual, continual,  visible,  hostile  and  notorious  possession  of 
the  land  for  more  than  ten  years  prior  to  the  commence- 
ment of  this  action,  claiming  the  same  under  claim  or  color 
of  title,  adversely  to  the  plaintiff,  and  those  under  whom 
his  title  is  derived;  and  the  jury  is  also  instructed  that 
the  claim  of  the  defendant,  derived  from  -  -  and  his 
vendor,  could  not  be  adverse  to  the  plaintiff,  or  those 
under  whom  he  claims,  until  the  deed  of  —  -  was 
delivered  to  said  defendant,  and  from  that  time  it  was 
adverse.  Low  v.  Settle.  32  W.  Va.  803. 


ADVERSE  POSSESSION.  83 

f.  Same — When  statute  of  limitations  begins  to  run. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  land  in  controversy  is  embraced 
in  and  conveyed  by  the  deeds  from  -  —  to ,  trus- 
tee, and  from  -  —  (another  trustee)  to  the  plaintiff, 
then  they  must  find  for  the  plaintiff,  unless  they  further 
believe  from  the  evidence  that  the  defendant  and  those 
under  whom  he  claims,  have  been  in  the  exclusive,  actual, 
continued,  visible,  hostile  and  notorious  possession  of  the 
land  for  more  than  ten  years  prior  to  the  commencement 
of  this  action  claiming  the  same  under  claim  or  color  of 
title  adversely  to  the  title  of  the  plaintiff  and  those  under 
whom  his  title  is  derived ;  and  they  are  also  instructed  that 
the  title  of  the  defendants  derived  from  -  —  was  not 
adverse  to  that  of  the  plaintiff  until  the  deed  from  - 
to  -  — ,  offered  in  evidence,  was  delivered  by  -  —  to 
— ,  and  from  that  time  it  was  adverse.  Core  v.  Fan- 
pel,  24  W.  Va.  249. 

g.  Source  of  title — Conflicting  titles  arising  from  same 

source — Priority  of  recordation  of  deeds. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  deed  from  A.  to  B.,  under  which 
the  defendant  claims,  covers  the  land  in  controversy,  and 
if  they  further  believe  from  the  evidence  that  the  deed 
from  A.  to  C.,  under  which  the  plaintiff  claims,  also  covers 
the  land  in  controversy,  and  if  they  further  believe  from 
the  evidence  that  the  deed  to  C.  was  first  admitted  to  rec- 
ord in  the  proper  office  for  recording  said  deeds,  then  the 
said  deed  from  A.  to  C.  vested  in  said  C.  a  valid  title 
to  said  land  in  controversy  unless  the  jury  believe  from 
the  evidence  that  the  said  C.  had  notice  that  the  said  deed 
to  B.,  which  is  older  in  date  than  the  deed  to  C.,  covered 
the  land  in  controversy  and  that  B.  claimed  title  thereto. 
Congrove  v.  Burdett,  28  W.  Va  222. 


M  ADVERSE  POSSESSION. 

h.     Boundary  lines. 

The  court  instructs  the  jury  that  in  ascertaining  the 
boundaries  of  a  tract  of  land  described  in  a  grant  or 
deed,  natural  boundaries  or  lines  of  marked  trees  will 
be  established  in  preference  to  mere  course  and  distance; 
and  where  there  are  no  natural  boundaries  and  lines 
of  marked  trees  to  be  relied  on  to  establish  such 
boundaries,  the  courses  and  distances  called  for  in  such 
deed  or  grant  will  control.  Congrove  v.  Burdett,  28  W. 
Va.  222. 

2.      ACTUAL     POSSESSION — WHAT     NECESSARY     TO     SUPPORT 
CLAIM    OF. 

a    Enclosures — What  intruder  not  limited  to — Posses- 
sion of  part  of  the  land — Interlocks. 

b.  Same — Superiority  of  title. 

c.  Same. 

d.  Same — Adverse   possession   at   time   of  and   since 

entry. 

e.  Same — Adverse  possession  in  third  party. 

f.  Same — Breach  of  covenant — Statute  of  limitations. 

g.  Improvements  made  upon  the  property. 

a.    Enclosures — What  intruder  not  limited  to — Possession 

of  part  of  the  land — Interlocks. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  land  embraced  in  the  deed  from 
A.  to  B.  for  -  -  acres  includes  the  land  in  controversy, 
and  that  the  land  conveyed  by  C.  to  D.  in  18 —  was  sur- 
veyed for  said  D.  by  said  C.,  and  includes  in  its  boundaries 
the  land  in  controversy,  then  the  land  in  controversy 
is  the  lap,  interlock  or  interference ;  and  if  the  jury  be- 
lieve from  the  evidence  that  said  D.,  and  those  who  claim 
under  him,  including  the  defendant,  entered  upon  and 


ADVERSE   POSSESSION.  85 

took  possession  of  any  part  of  the  land  in  controversy 
and  actually  improved  any  part  of  the  same  by  enclosure 
and  exercised  other  open,  visible,  notorious  and  habitual 
acts  of  ownership  over  the  land  in  controversy;  and  if  the 
jury  further  believe  from  the  evidence  that  the  said  B. 
and  those  who  claim  under  her,  never  in  fact  took  actual 
possession  of  any  part  of  the  land  lying  within  the  dis- 
puted boundaries,  the  lines  shaded  green  on  the  plat  in 
this  cause,  but  did  enter  and  take  possession  of  some  part 
of  the  land  embraced  in  her  deed  for  —  acres  outside  of 
the  land  in  controversy,  then  such  possesion  by  said  B., 
and  those  who  claim  under  her,  of  any  part  of  the  said  - 
acres  outside  of  the  lap  or  interlock,  shaded  in  green, 
does  not  give  to  the  plaintiffs,  or  those  under  whom  they 
claim,  possession,  actual  or  constructive,  or  any  part  of 
the  land  in  controversy,  and  does  not  limit  the  defendant 
to  the  actual  enclosure,  even  if  the  jury  should  believe 
the  title  of  B.  to  the  —  acres  to  have  been  the  better  title. 
Congrove  v.  Burdett,  28  W.  Va.  223. 

b.     Same — Possession  of  any  part  of  the  land — Superiority 

of  title. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant,  and  those  under  whom  he 
claims,  entered  upon  and  took  possession  of  any  part  of 
the  land  in  controversy,  claiming  it  under  color  or  claim 
of  title  by  deed  or  other  writing,  then  the  defendant,  and 
those  under  whom  he  claims,  thereby  acquired  adversary- 
possession  of  such  land  to  the  extent  of  the  boundaries 
embraced  by  such  deed  or  other  writing,  unless  the 
jury  believe  from  the  evidence  that  the  plaintiff,  or  those 
under  whom  he  claims,  had  the  better  title  and  had  ac- 
tual adverse  possession  of  the  part  of  the  land  embraced 
by  the  deed  or  other  writing  under  which  the  defendant, 
or  those  under  whom  he  claims,  entered  and  took  pos- 


86  ADVERSE  POSSESSION. 

session  of  said  land  in  controversy.    Congrove  v.  Burdett, 
28  W.  Va.  223. 

c.  Same. 

The  court  instructs  the  jury  that  if  the  defendant,  or 
those  under  whom  he  claims,  under  a  deed  or  other  writ- 
ing, entered  and  took  possession  of  any  part  of  the  land 
in  controversy  under  such  deed  or  other  writing,  and 
held  such  adversary  possession  of  said  land  under  such 
deed  or  other  writing,  then  such  adversary  possession 
of  any  part  of  said  land  is  to  be  taken  and  held  to  ex- 
tend to  the  boundaries  embraced  and  included  by  such 
deed  or  other  writing,  notwithstanding  some  other  person 
may  have  the  better  title  to  such  land,  and  the  jury  must 
find  for  the  defendant  unless  the  person  having  the 
better  title  shall  have  actual  adverse  possession  of  some 
part  of  the  land  embraced  by  such  deed  or  other  writing 
under  which  the  defendant,  and  those  under  whom  he 
claims,  entered  upon  and  took  possession  of  the  land  in 
controversy.  Congrove  v.  Burdett,  28  W.  Va.  223. 

d.  Adverse  possession  at  time  of  and  since  entry. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  person  under  whom  the  - 
hold  were  at  any  time  ten  years  prior  to  the  institution 
of  this  suit,  and  still  are  the  actual  owners  by  a  para- 
mount title  of  the  -  —  surveys  described  in  the  title 
papers  and  evidence  in  this  case;  that  said  -  -  sur- 
veys are  contiguous;  and  that  the  said  -  —  or  those 
under  whom  he  holds,  at  any  time  ten  years  prior  to  the 
institution  of  this  suit  entered  upon  and  took  possession 
of  any  part  of  either  of  the  said  surveys,  claiming  under 
said  title;  and  that  there  was  not  at  the  date  of  such 
entry,  and  has  not  been  since,  any  actual,  visible  adverse 
possession  of  the  land  embraced  in  the  interlock  herein — 


ADVERSE   POSSESSION.  87 

then  the  verdict  should  be  for  the  defendant.     Ilsley  \. 
Wilson,  42  W.  Va.  764. 

e.  Same — Adverse  possession  in  third  party. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  — ,  the  holder  of  the  alleged 

paramount  title  and  those  under  whom  he  claims,  owns 
under  said  alleged  paramount  title,  several  contiguous 
and  coterminous  tracts,  pieces  or  parcels  of  land,  em- 
bracing the  land  in  controversy  shown  on  the  map  made 
and  filed  in  this  case  as  the  lap  or  interlock,  and  at  any 
time  prior  to  the  conveyance  by  -  -  to  the  plaintiff, 
dated  the  -  -  day  of  -  — ,  18 — ,  and  shown  in  evi- 
dence, had  taken  and  held  actual  possession  of  any  part 
or  parcel  of  any  of  the  said  coterminous  tracts  not  in 
the  actual  adverse  possession  of  some  third  person,  and 
including,  as  well,  the  wild  and  uninclosed  land  as  the  im- 
proved land ;  such  possession  is  held  to  include  the  alleged 
interlock,  however  far  it  may  be  removed  from  the  actual 
inclosure,  provided  the  said  interlock  was  not  then  in 
the  actual  adverse  possession  of  some  person  claiming 
under  the  -  -  title.  Ilsley  v.  Wilson,  42  W.  Va.  763. 

f.  Breach  of  covenant — Statute  of  limitations. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  at  the  time  of  conveyance  from  the 
defendant  to  -  — ,  shown  in  evidence,  and  bearing  date 

—  day  of  -  — ,  18 — ,  that  the  part  of  the  land 
thereby  attempted  to  be  conveyed,  embraced  by  the  al- 
leged interlock  or  lap  with  the  -  —  survey  of  

acres,  now  claimed  by  the ,  was  in  the  actual  pos- 
session of  those  under  whom  said  claims  by  a 

title  paramount  to  the  title  conveyed  by  said  —  —  to 

— ,  then  there  was  a  breach  of  said  covenant  in  said 
conveyance  eo  Instanti,  and  if  more  than  ten  years  elapsed 
from  that  time  before  the  bringing  of  this  suit,  the  action 


88  ADVERSE  POSSESSION. 

is  barred,  and  the  jury  should  find  for  the  defendant. 
Ilslcy  v.  Wilson,  42  W.  Ya.  763. 

g.    Improvements  made  upon  the  property. 

The  court  instructs  the  jury  that  the  making  of  im- 
provements by  the  defendant  upon  the  property  in  con- 
troversy will  not  prevent  the  plaintiff  from  recovering  the 
possession  thereof  in  this  action.  McDougal  v.  Musgrave, 
46  W.  Va.  514. 

3.  QUANTITY    OF    LAND   CONVEYED. 

a.    Conveyance  by  metes  and  bounds. 

The  court  instructs  the  jury  that  the  fact  that  the  deed 
from  -  -  to  -  -  conveys  by  metes  and  bounds  to 
.said  -  -  more  than  -  -  acres  should  not  be  taken 
into  consideration  by  you  in  determining  the  matters  in 
controversy  in  this  action.  Roltlnson  \.  Lowe,  50  W.  Va. 
S3. 

4.  HOSTILITY  IN  INCEPTION — CONTINUED  HOSTILITY. 

a.  Entry   under   title   of   legal   owner — How   contro- 

verted. 

b.  Holding  by  vendee  as  against  vendor — Executory 

contracts. 

c.  Holding  by  tenant  as  adverse  to  landlord. 

d.  Holding  by  co-tenant  as  adverse  to  co-tenant. 

e.  Same — Notice  of  change  of  relationship — Necessity 

for. 

f.  Life-estate   of   landlord — Nature   of   title   of   both 

landlord  and  tenant. 

g.  Same — Expiration  of  landlord's  life  estate. 

a.    Entry  under  title  of  legal  owner — How  controverted. 
The  court  instructs  the  jury  that  the  defendant  to  make 


ADVERSE  POSSESSION.  89 

out  a  title  by  adverse  possession,  must  show  that  such 
possession  was  adverse  in  its  inception,  and  where  the 
entry  is  under  the  title  of  the  legal  owner,  the  holder  can- 
not controvert  that  title  without  an  express  disclaimer 
or  its  equivalent,  and  the  assertion  of  an  adverse  title 
with  notice  to  the  owner.  Maxwell  v.  Cunningham,  50 
W.  Va.  30A 

b.  Holding  by  vendee  as  against  vendor  —  Executory 

contracts — Future  conveyances. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  entered  into  possession  of 
the  land  in  controversy  under  an  executory  contract 
which  left  the  legal  title  in  his  vendor,  and  contemplated 
a  further  conveyance  of  the  complete  title,  his  entry  was 
in  subordination  to  the  legal  title,  and  in  that  event  a 
privity  existed  which  precluded  the  idea  of  a  hostile  or 
tortious  possession  that  could  silently  ripen  into  an  ad- 
verse possession  under  the  statute  of  limitations.  Low 
v.  Settle,  32  W.  Va.  603. 

c.  Holding  by  tenant  as  adverse  to  landlord — Relation 

of  landlord  and  tenant — Life-estate  of  landlord. 
The  court  instructs  the  jury  that  a  tenant  can  not  deny 
the  title  of  the  landlord  and  to  the  extent  that  the  re- 
lation of  landlord  and  tenant  existed  between  the  plain- 
tiff and  defendant,  the  defendant  is  precluded  from  deny- 
ing the  title  of  the  plaintiff  to  the  life  estate  claimed  by 
her  in  the  premises  in  controversy,  and  is  precluded  from 
taking  any  advantage  of  his  position  and  possession  as 
such  tenant  to  do  anything  to  defeat  the  right  of  the  plain- 
tiff without  showing  that  he  first  brought  home  notice  to 
her  that  he  was  holding  the  said  premises  adversely  to  her 
life  estate  therein.  McDougal  v.  Ifusgrave.  46  W.  Va. 
513. 


90  ADVERSE  POSSESSION. 

d.    Holding  by  co-tenant  as  adverse  to  co-tenant — Waiver 

of  rights. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  A.,  (father  of  the  defendant  B.,)  and  C. 
executed  an  agreement  in  writing  bearing  date  the  - 

day  of • — ,  and  that  the  paper  purporting  to  be  a 

copy  thereof  introduced  in  evidence  is  a  copy  of  said 
agreement,  then  from  the  time  of  the  execution  of  said 
contract  the  said  C.  was  th6  owner  of  all  the  land  in  the 
declaration  described  except  as  to  one  undivided  sixth  of 
that  portion  of  the  land  described  in  said  agreement  by 
metes  and  bounds  until  the  time  of  his  death;  and  that  at 
his  death  the  plaintiff  became  the  owner  thereof;  and  if 
they  further  believe  from  the  evidence  that  D.,  son  of 
said  A.,  claiming  to  have  acquired  the  interest  formerly 
held  by  his  father  in  said  land  (except  the  share  of  his 
brother  B.)  executed  the  deed  to  the  defendant  B.,  bear- 
ing date  the  -  -  day  of  -  — ,  a  copy  of  which  was 
introduced  in  evidence,  and  if  they  further  believe  from 
the  evidence  that  the  defendant,  E.,  went  into  possession 
of  part  of  the  land  in  controversy  in  18 — ,  after  the  exe- 
cution of  said  deed  to  the  defendant  B.,  under  the  verbal 
agreement  with  his  father,  and  had  remained  in  posses- 
sion ever  since,  such  possession  under  the  evidence  and 
circumstances  in  this  case  was  not  adverse  to  said  C. 
or  the  plaintiff  before  the  recordation  of  said  deed  on 
the  -  -  day  of  —  — ,  unless  it  is  shown  by  the  evi- 
dence that  before  the  recordation  of  the  said  deed  and 
ten  years  before  the  institution  of  this  suit  notice  was 
brought  home  to  the  plaintiff,  or  to  her  father,  C.,  that 
the  defendants  were  holding  adversely  and  claiming  all 
the  land  in  controversy,  and  the  plaintiff  is  entitled  to 
recover  from  the  defendants  the  land  in  controversy 
except  the  one  undivided  sixth  interest  in  that  portion 
of  the  -  -  acres,  described  in  the  paper  offered  in  evi- 


ADVERSE  POSSESSION.  91 

dence  as  a  copy  of  an  agreement  between  C.  and  A.,  as  to 
which  undivided  sixth  the  plaintiff  has  waived  her  right 
to  recover.  Parr  v.  Currence,  53  W.  Va.  529. 

e.  Same — Notice   of  change   of  relationship — Necessity 

for. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  entered  into  the  posses- 
sion of  the  premises  in  controversy  under  an  agreement 
and  understanding  with  the  plaintiff  by  which  he  was  to 
occupy  said  premises  with  the  plaintiff,  the  plaintiff  not 
paying  the  defendant  board  and  the  defendant  on  the 
other  hand  not  paying  the  plaintiff  rent  then  the 
possession  of  the  defendant  would  not  under  such  cir- 
cumstances be  hostile,  adverse  or  exclusive  as  to  the  plain- 
tiff and  would  not  become  hostile,  adverse  or  exclusive 
as  to  the  plaintiff  until  the  defendant  brought  home 
notice  to  the  plaintiff  of  a  change  in  such  arrangement 
and  that  he  claimed  the  premises  adversely  to  her  life  es- 
tate and  until  the  defendant  brought  home  to  her  notice 
of  such  change  and  claim  to  hold  adversely  such  posses- 
sion by  the  defendant  would  not  be  adverse,  and  would 
not  be  the  basis  of  any  adverse  claim  by  the  defendant. 
McDougal  v.  Musgrave,  46  W.  Va.  514. 

f.  Life  estate  of  landlord — Nature  of  title  of  both  land- 

lord and  tenant. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  and  defendant  claim  title 
under  the  deed  of  -  — ,  18 — ,  from  plaintiff  to 

-  and  of  —  — ,  18 — ,  from  -         -  to  the  de- 

fendant, then  by  the  provisions  of  said  deed  the  plaintiff 
is  entitled  to  the  possession  of  the  premises  in  contro- 
versy for  and  during  her  natural  life,  and  if  the  plaintiff 
permitted  the  defendant  to  come  upon  the  premises  with 
his  family  and  occupy  the  premises  with  her  the  said 


92  ADVERSE  POSSESSION. 

plaintiff,  then  the  said  defendant  became  and  was  during 
the  period  of  such  occupancy  the  tenant  of  the  plaintiff 
of  such  premises,  and  if  such  permissive  occupation  was 
without  any  term  of  holding  being  fixed  and  without  the 
payment  of  rent,  then  such  occupancy  was  at  will,  and 
the  plaintiff  is  entitled  to  have  possession  of  said  premi- 
ses upon  demand.  McDougal  v.  Husgrave,  46  W.  Va. 
513. 

g.     Same — Expiration  of  landlord's  life  estate — Tenant's 

remainder  in  fee  dependent  upon. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  and  defendant  claim  title 
under  the  deed  of  -  — ,  18 — ,  from  the  plaintiff 

to  -         -  and  the  deed  of  -  — ,  18 — ,  from  said 

-  to  the  defendant  offered  in  evidence  in  this  case 
and  that  by  reason  of  said  deeds  the  plaintiff  has  an  es- 
tate for  and  during  her  natural  life  in  the  property  in  the 
declaration  mentioned  and  the  defendant  a  remainder 
in  fee  in  said  premises  dependent  upon  the  expiration  of 
said  life  estate,  unless  the  defendant  shows  that  the 
plaintiff  has  in  some  way  lost  said  life  estate  she  is  en- 
titled to  recover  in  said  action.  McDougal  v.  Musgrave, 
46  W.  Va.  514. 

5.      CONTINUITY  OF  POSSESSION. 

a.  Tacking  on  different  adverse  possessions. 

b.  Necessity   for   connecting  title — Lengthening   pos- 

session. 

c.  Possession    limited   to    color   of   title — Actual   en- 

closures. 

a.    Tacking  on  different  adverse  possessions. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  A.  went  into  possession  of  the  


ADVERSE  POSSESSION.  93 

acres  of  land  in  controversy  under  one  B.,  and  that  the 
defendant  afterwards  took  possession  under  claim  or  color 
of  title  derived  from  C.,  and  that  there  was  no  privity  of 
estate  between  B.  and  C.,  then  the  possession  of  said  A. 
of  said  -  —  acres  under  B.  can  avail  the  defendant 
nothing  in  his  defense  of  adversary  possession  under 
claim  or  color  of  title  under  C.;  that  these  two  posses- 
sions cannot  be  tacked  onto  each  other  so  as  to  make  a 
continuity  of  possession,  unless  there  is  a  privity  of  es- 
tate, or  the  two  titles  are  connected.  Jarrett  v.  Stevens, 
?6  W.  Va.  440. 

b.  Necessity  for  connecting  title — Lengthening  posses- 

sion. 

The  court  instructs  the  jury  that  any  possession  by  any 
party,  of  the  land  in  controversy,  other  than  the  defend- 
ant, cannot  inure  to  the  benefit  of  the  defendant,  so  as 
to  lengthen  and  strengthen  his  possession,  unless  he  con- 
nect the  title  by  which  he  claimed  under  the  title  of  such 
other  person.  Jarrett  v.  Stevens,  36  W.  Va  450. 

c.  Possession  limited  to  color  of  title — Actual  enclosures. 
The  court  instructs  the  jury  that  the  defendant  can 

only  show  adversary  possession  of  land  to  which  he  has 
shown  color  of  title,  or  which  he  has  had  under  fence, 
and  if  he  claims  by  fence,  he  can  only  claim  to  the  ex- 
tent of  actual  enclosure.  Jarrett  v.  Stevens,  36  W.  Va. 
451. 

6.      PAYMENT    OF    TAXES — FORFEITURE    FOR    NON-PAYMENT 

OF  TAXES. 

a.  Payment  of  taxes  by  one  holding  title  under  void 

judicial  sale. 

b.  Same — Privity   of   estate   between   purchaser   and 

legal  owner. 


94  ADVERSE  POSSESSION. 

c.  Title  acquired  by  purchaser  at  tax  sale. 

d.  How  contiguous  tracts  owned  by  same  person  may 

be  assessed. 

e.  Assessment  and  payment  of  taxes  on  life-estate — 

Payment  of  taxes  by  tenant  holding  fee  simple 
in  lands. 

f.  Same. 

a.  Payment  of  taxes  by  one  holding  title  under  a  void 

judicial  sale. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  claimed  to  hold  posses- 
sion of  the  land  in  controversy,  by  virtue  of  the  deed  made 
to  him  in  the  proceedings  in  the  chancery  suit  of  - 
vs.  plaintiff,  (said  deed  having  been  declared  void  by  the 
supreme  court),  that  the  failure  of  the  plaintiff  to  cause 
the  land  to  be  entered  on  the  assessor's  books  of  - 
county,  for  the  year  18 —  to  the  year  -  — ,  inclusive, 
nine  years),  does  not  work  a  forfeiture  of  his  title,  so  as 
to  defeat  his  right  to  recover  the  land  in  controversy 
in  this  suit,  because  the  land  was  assessed  on  the  asses- 
sor's books  of  the  county  of  -  — ,  in  the  name  of  the 
defendant  and  taxes  paid  thereon  by  him  for  the  said 
years  18 —  to  18 — ,  inclusive,  under  his  said  claim  of 
title  derived  from  the  deed  made  to  him  by  virtue  of  said 
chancery  suit,  (said  deed  having  subsequently  been  de- 
clared invalid  by  the  supreme  court).  Hall  v.  Hall,  27 
W.  Ya.  472. 

b.  Same — Privity  of  estate  between  purchaser  and  legal 

owner. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  purchased  the  property  in 
question  and  entered  into  possession  thereof,  under  and  by 
virtue  of  a  deed  made  on  the  —  —  day  of  -  — ,  18 — ,by  — 

— ,  special  commissioner  in  the  chancery  cause  of—  -  vs, 


ADVERSE   POSSESSION.  95 

the  plaintiff,  (which  deed  was  subsequently  declared  void 
by  the  supreme  court  of  appeals),  and  that  the  property 
conveyed  by  said  deed  was  the  property  which  had  been 
claimed,  owned  and  occupied  by  plaintiff  by  virtue  of  a 
purchase  made  by  him  in  18 — ,  that  the  then  said  com- 
missioner, acting  under  and  by  virtue  of  said  decree,  was 
the  agent  of  the  plaintiff  and  the  defendant,  and  that 
the  relationship  of  vendor  and  vendee  subsisted  between 
them,  and  although  the  said  deed  made  by  said  commis- 
sioner was,  by  a  subsequent  decision  of  the  supreme  court 
of  appeals  of  West  Virginia,  declared  to  be  invalid  and 
set  aside;  that  the  fact  that  {fie  defendant  entered  into 
possession  of  the  property  under  and  by  virtue  of  the 
deed  made  by  a  court  of  competent  jurisdiction,  estab- 
lishes such  a  privity  of  estate  in  respect  to  the  rights  of 
the  parties  plaintiff  and  defendant  in  this  suit,  so  that 
the  assessment  on  the  assessor's  books  to  and  payment 
of  taxes  on  said  property  by  the  defendant  inures  to  the 
benefit  of  the  plaintiff,  and  will  not  work  a  forfeiture  of 
the  land  in  controversy.  Hall  v.  Hall,  27  W.  Va.  476. 

c.  Title  acquired  by  purchaser  at  tax  sale — How  title  de- 

feated. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  -  was  a  creditor  of  -  — ,  and  as 
such,  paid  the  taxes  on  the  land  in  controversy  for  the 
years  for  which  it  was  returned  delinquent,  then  the  same 
was  improperly  returned  delinquent,  and  the  tax  deed 
conferred  no  title  on  the  purchaser  at  the  tax  sale.  Car- 
rell  v.  Mitchell,  37  W.  Va.  140. 

d.  How  contiguous  tracts  owned  by  same  person  may  be 

assessed. 

The  court  instructs  the  jury  that  if  a  person  has  his 
land  charged  upon  the  land  books  in  a  large  tract  that 
covers  all  his  smaller  tracts  or  any  of  his  smaller  tracts, 


96  ADVERSE  POSSESSION. 

it  is  not  necessary  for  him  to  have  it  charged  to  him  in  the 
small  tracts,  and  no  forfeiture  can  accrue  to  those  small 
tracts  by  reason  of  their  not  being  so  charged  as  small 
tracts,  if  they  are  included  in  the  large  tracts.  In  other 
words,  coterminous  tracts  of  land  belonging  to  the  same 
person  for  the  assessment  and  payment  of  taxes  are  the 
same  as  one  tract.  Maxwell  v.  Cunningham,  50  W.  Va. 
301. 

e.  Assessement  and  payment  of  taxes  on  life  estate — 

Payment  of  taxes  by  tenant  holding  fee  simple  in 
land. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  and  defendant  claim  title 
to  the  premises  in  controversy  under  the  deed  of  - 
— ,  18 — ,  from  the  plaintiff  to  -  -  and  of  - 
— ,  18 — ,  from  said  -  -  to  the  defendant  and  under 
the  provisions  of  said  deeds  the  plaintiff  has  an  estate  for 
and  during  her  natural  life  in  said  premises  and  the  de- 
fendant a  remainder  in  fee  therein  dependent  upon  the 
expiration  of  said  life  estate,  and  the  assessment  of  said 
life  estate  and  remainder  in  fee  in  the  form  of  the  fee  to 
the  said  defendant,  would  enure  to  the  benefit  of  the  said 
plaintiff,  and  a  forfeiture  of  her  life  estate  would  not  be 
caused  by  a  failure  under  such  circumstances  to  have  such 
life  estate  assessed  separately  in  her  name,  unless  before 
such  failure  to  have  the  same  assessed  to  her  separately 
the  plaintiff  had  notice  that  the  defendant  was  holding 
and  claiming  the  entire  property  adversely  to  her.  Mc- 
Dougal  v.  Musgrave,  46  W.  Va.  514. 

f.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  prior  to  and  at  the  time  of  the  institu- 
tion of  this  action  the  plaintiff  had  a  life  estate  in  the 


ADVERSE   POSSESSION.  97 

premises  in  controversy  and  that  during  the  time  she  so 
had  such  life  estate  she  permitted  the  defendant  to  enter  up- 
said  premises  and  become  her  tenant  therein,  then  the 
jury  are  instructed  that  an  assessment  of  said  property 
in  the  name  of  the  defendant,  the  tenant  as  aforesaid, 
and  the  payment  of  the  taxes  upon  the  property  by  such 
defendant  while  such  tenancy  continued,  and  before  the 
plaintiff  had  any  notice  of  a  hostile  holding  of  the  premi- 
ses by  the  defendant,  would  be  a  payment  of  the  taxes 
for  the  plaintiff  and  would  enure  to  her  benefit  and  pre- 
vent a  forfeiture  of  said  land  for  failure  to  assess  in  her 
name.  McDougal  v.  Musgrave,  46  W.  Va.  513. 

7.       STATUTE  OF  LIMITATIONS. 

a.  Against  both  possession  and  title. 

b.  Same — Superiority  of  title. 

a.  Against  both  possession  and  title. 

The  court  instructs  the  jury  that  the  effect  of  the 
statute  of  limitations  in  this  action  is  to  render  a  con- 
tinued adversary  possession  for  ten  years  prior  to  the 
commencement  of  this  action  conclusive  not  only  against 
the  possession  but  also  against  the  title  of  the  true  owner 
whoever  he  may  be.  Congrove  v.  Burdett,  28  W.  Va.  223. 

b.  Same — Superiority  of  title. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant,  and  those  under  whom  he 
claims,  have  been  in  the  exclusive,  hostile,  actual,  continued, 
visible  and  notorious  possession  of  the  land  in  dispute  for 
more  than  ten  years  prior  to  the  commencement  of  this 
action,  claiming  the  same  under  claim  or  color  of  title 
adversely  to  the  title  of  the  plaintiffs,  and  those  under 
whom  their  title  is  derived,  then  they  must  find  for  the 


98  AGENCY. 

defendant,  notwithstanding  the  jury  may  believe  from 
the  evidence  that  the  plaintiff's  title,  but  for  such  ad- 
verse possession,  is  the  better  one.  Congrove  v.  Burdett, 
28  W.  Va.  223. 


CHAPTER  3. 
AGENCY. 

a.  The  relation  between  principal  and  agent. 

b.  Scope  of  authority  of  agents. 

c.  Same. 

d.  Same — Agents  want  of  authority. 

e.  Same. 

f.  Employment  of  third  party  by  agent. 

g.  False  representations  by  agents — Concealment  of 

facts  by  agent, 
h.     Same. 

a.    Relation  between  principal  and  agent — Limit  of  Au- 
thority of  agent  to  buy  on  credit. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  relation  between  defendants  and 
-  was  such  that  defendants  furnished  -  -  with  a 
sum  or  sums  of  money,  and  sent  him  into  market  simply 
to  invest  such  moneys  in  wheat  for  them,  then  -  -  had 
no  authority  to  buy  wheat  for  defendants  on  credit.  But 
if  the  jury  believe  from  the  evidence  that  -  -  was  au- 
thorized to  go  into  the  market  and  buy  wheat  generally, 
for  defendants,  or  if  -  -  was  authorized  to  make  con- 
tracts for  wheat  and  repay  himself  by  drafts  on  defend- 
ants, or  if  from  the  course  of  dealing  the  jury  are  satis- 
fied that  -  -  was  in  the  habit  of  buying  wheat  and 
forwarding  it  to  defendants,  and  defendants  knowingly 


AGENCY.  99 

received  it  as  being  in  greater  amount  than  their  advances 
in  cash,  that  then  defendants  would  be  liable  unless  they 
had  in  the  due  course  of  the  business  of  said  defendants 
and  -  — ,  touching  the  premises,  made  advances  to  said 
-  sufficient  to  pay  for  the  wheat  so  received,  or  he 
will  be  liable  for  so  much  as  may  be  covered  by  these  ad- 
vances. Or  if  the  jury  shall  find  that  defendants  have  re- 
ceived wheat  beyond  the  amount  of  the  advances,  and 
which  was  sold  to  -  — ,  and  by  him  purchased  as  the 
private  agent  of  the  defendants,  the  plaintiff  would  be 
entitled  to  recover  to  the  amount  of  such  wheat  in  excess 
over  the  advances  to  the  amount  of  his  proof.  Detwiler  v. 
Greene,  1  W.  Va.  113. 

b.  Scope  of  authority  of  agent — Ratification  of  acts  of 

agent — Benefits  received  and  accepted  by  principal. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  -  was  the  agent  of  the  defendant 
in  the  purchase  of  the  claim  of  the  plaintiff,  without  he 
made  positive  false  representations  of  material  facts  or 
concealed  facts  which  it  was  his  duty  to  communicate 
to  the  plaintiff,  and  that  such  representations  or  con- 
cealments of  such  facts  were  made  or  withheld  by  the 
agent  at  the  time  of  the  purchase  of  said  claim,  or  if  they 
believe  from  the  evidence,  that  the  agent  in  making  such 
representations  or  concealments  acted  beyond  the  scope 
of  his  authority,  yet  if  they  further  believe  from  the  evi- 
dence that  the  defendant  ratified  the  purchase  of  the  plain- 
tiff's claim  made  by  the  said  agent  by  accepting  and  re- 
ceiving the  benefit  of  such  purchase,  then  in  either  case  all 
representations  and  acts  of  the  said  agent  occurring  at 
the  time  of  the  purchase  and  with  reference  thereto  are 
binding  on  the  principal.  Lane  v.  Black,  21  W.  Va.  625. 

c.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 


1()0  AGENCY. 

the  evidence  that  A.  was  authorized  to  perform  other 
duties  for  said  B.  and  C.,  yet  before  the  defendant  can  de- 
feat the  plaintiff's  action  they  must  show  that  A  had  au- 
thority to  sell  this  particular  -  -  at  the  time  they 
claim  he  did  so,  and  if  they  fail  to  show  that  A.  had  such 
authority  the  jury  must  find  for  the  plaintiff.  Rosendorff 
v.  Poling,  48  W.  Ya.  624. 

d.  Same — Agent's  want  of  authority. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  A.  had  no  authority  to  sell  this  particu- 
lar -  -  in  question  to  D.  from  C.,  then  they  must  find 
for  the  plaintiff.  Rosendorff  v.  Poling,  48  W.  Va.  624. 

e.  Same. 

The  court  instructs  the  jury  that  if  they  do  believe 
from  the  evidence  that  A.  was  authorized  to  perform  other 
duties  for  B.  and  C.  yet  before  the  defendants  can  defeat 
the  plaintiff's  action,  they  must  show  that  A.  was  in  the 
employ  of  C.  clothed  with  general  authority  to  transact 
business  for  said  C.,  including  that  of  selling  the  - 
at  the  time  D.  claims  to  have  purchased  the  —  -  in  con- 
troversy, and  if  defendants  fail  therein,  then  the  jury 
must  find  for  the  plaintiffs.  Rosendorff  v.  Poling,  48  W. 
Va.  624. 

f .  Employment  of  third  party  by  agent — Ratification  of 

acts  of  agent  by  principal. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  -  was  the  agent  of  the  defendant 
in  charge  at  the  well  in  controversy,  and  that  said  agent 
had  placed  -  -  in  charge  of  said  well  in  his  absence, 
and  never  returned  to  assume  the  management  of  said 
well,  and  never  discharged  -  —  from  the  managing  and 
looking  after  said  well,  and  that  said  -  -  was  never 
discharged  by  the  defendant  from  said  management,  and 


AGENCY.  101 

that  the  defendant  ratified  the  act  of  said  agent,  then,  in 
that  event,  the  acts,  declarations  and  conduct  of  said 
-  in  managing  and  controlling  said  well  would  bind 
the  defendant,  and  the  jury  should  find  for  the  plaintiff. 
Coulter  v.  Blatchley,  51  W.  Va.  166. 

g.     False  representations  by  agent — Concealment  of  facts 

by  agent. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  was  induced  to  sell  his 
claim  to  the  defendant  by  positive  false  representations 
of  a  material  fact  or  facts,  by  the  defendant  or  his  agent, 
or  the  concealment  of  facts,  which  it  was  the  duty  of  the 
defendant  or  his  agent  to  communicate  to  him,  then  the 
question  of  plaintiff's  ownership  of  the  cattle  for  which 
the  receipt  or  voucher  was  given  can  be  considered  by 
the  jury  in  determining  the  issue  in  this  case.  Lane  v. 
Black,  21  W.  Va.  621. 

h.     Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  if  the  defendant,  in  treating  for  the  pur- 
chase of  the  claim,  or  his  agent  at  the  time  of  the  pur- 
chase thereof,  made  a  positive  false  representation  as  to 
any  material  part  constituting  an  inducement  to  the  sale, 
or  by  the  concealment  of  any  such  fact,  in  which  plain- 
tiff was  misled  and  suffered  damage,  and  in  which  plaintiff 
is  presumed  to  have  trusted  to  them  or  to  either  of  them, 
and  not  to  have  relied  on  his  own  judgment,  then  the  pur- 
chase of  said  claim  was  fraudulently  obtained,  and  the 
jury  must  find  for  the  plaintiff.  Lane  v.  Black,  21  W.  Va. 
624. 


102  ASSAULT  AND  BATTERY. 


CHAPTER  4. 

ASSAULT  AND  BATTERY. 

a.  Regaining  possession  of  property — Use  of  necessary 

force  for. 

b.  Same — Even  though  suffering  or  injury  result  from. 

c.  Same — Unnecessary  force. 

d.  Same — Damages  resulting  from — How  determined 

—Punitive  damages. 

e.  Persons  charged  with  conspiracy  may  be  convicted 

of  assault  and  battery. 

a.  Regaining  possession  of  property — Use  of  necessary 

force  for. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  was  a  merchant  and  le- 
gally had  in  his  possession  in  his  store  the  hat  in  ques- 
tion, and  that  the  plaintiff  came  into  said  store  and  by  in- 
ducing the  defendant  to  believe  that  she,  the  plaintiff, 
would  pay  for  said  hat,  obtained  from  the  defendant  the 
possession  thereof,  and  that  after  obtaining  possession  of 
said  hat,  the  plaintiff  undertook  to  take  the  same  out  of 
said  store  without  paying  therefor,  then  the  defendant 
had  the  legal  right  to  pursue  the  plaintiff  and  retake  the 
said  hat,  and  that  in  so  doing  lie  had  the  right  to  use 
such  force  as  was  necessary  for  the  purpose.  Stevens  v. 
Friedman,  58  W.  Va. . 

b.  Same — Even  though  suffering  or  injury  result  from. 
The  Court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  plaintiff  attempted  to  illegally  take 
the  hat  in  question  from  the  possession  of  the  defendant,  or 
that  she  intentionally  caused  him  to  believe  that  she  was 
in  the  act  of  so  doing,  and  that  acting  under  such  belief 


ASSAULT  AND  BATTERY.  103 

the  said  defendant  pursued  the  plaintiff  and  recovered 
said  hat  from  her  by  the  use  of  so  much  force  only  as  was 
necessary  for  the  purpose,  then  they  should  find  for  the 
defendant,  even  though  they  may  believe  that  the  plaintiff 
was  caused  suffering  or  injury  as  the  result  of  the  use  of 
such  force.  Stevens  v.  Friedman,  58  W.  Va.  — . 

c.  Same — Unnecessary  force  not  to  be  used. 

The  Court  instructs  the  jury  that  if  they  should  believe 
from  the  evidence  that  defendant  had  the  right  to  take  the 
said  hat  from  the  possession  of  plaintiff,  yet  if  they 
further  believe  that  he  used  violence  more  than  was  neces- 
sary to  be  used  in  order  to  take  possession  of  said  hat 
from  plaintiff,  and  that  she  was  injured  physically 
thereby  and  was  caused  to  suffer  physical  pain  thereby, 
then  plaintiff  is  entitled  to  recover.  Stevens  v.  Friedman, 
58  W.  Va.  — . 

d.  Damages  resulting  from — How  determined — Punitive 

damages. 

The  Court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  committed  an  assault  and 
battery  upon  the  plaintiff,  as  alleged  in  the  declaration, 
and  that  she  is  entitled  to  recover,  then  in  determining  the 
amount  of  damages,  they  are  authorized  to  take  into  con- 
sideration any  physical  injury,  if  any,  caused  thereby,  as 
well  as  any  physical  suffering,  if  any,  caused  thereby,  and 
also  such  punitive  or  exemplary  damages  as  they  may 
judge  proper  and  just  in  the  premises,  if  they  find  from 
the  evidence  that  said  assault  and  battery  was  wanton  or 
wilful.  Stevens  v.  Friedman,  58  W.  Va. . 

e.  Person  charged  with  conspiracy  may  be  convicted 

of  assault  and  battery. 

The  court  instructs  the  jury  that  although  they  may 
find  the  prisoners  not  guilty  of  the  offense  charged  in 


104        ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS. 

the  indictment,  if  they  shall  not  be  satisfied  or  have  a 
reasonable  doubt  as  to  the  existence  of  a  conspiracy  and 
combination  to  do  the  acts  charged  therein,  yet  you  may 
find  them  guilty  of  assault  and  battery  if  you  think  that 
the  evidence  in  this  case  shall  warrant  such  verdict. 
State  v.  Bingham,  42  W.  Va.  234. 


CHAPTER  5. 
ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS. 

a.  Validity  of  assignment — Fraud  in  assignment. 

b.  Same. 

c.  Same — Recordation  of  deed  of  assignment. 

d.  Sale  of  goods  assigned  for  valuable  consideration. 

e.  Actual  possession  by  purchaser,  of  goods  assigned 

— Statute  of  limitations. 

a.  Validity    of    assignment — Fraud    in     assignment — 

Knowledge  of  assignee  of  fraudulent  intent  of  as- 
signor. 
The  court  instructs  the  jury  that  the  assignment  of  - 

to ,  (assignee),  dated ,  18 — ,  is  not  fraudulent  on 

its  face,  and  unless  the  jury  believe  from  the  evidence  that 
— ,  when  he  executed  this  assignment,  did  so  with  in- 
tent to  delay,  hinder  or  defraud  his  creditors,  and  that 
this  intent  on  his  part  was  known  to  -  — ,  (assignee), 
when  he,  (the  assignee),  took  possession  of  these  goods, 
wares  and  merchandise,  then  the  assignment  is  not  fraud- 
ulent in  fact  so  as  to  entitle  the  defendant,  by  reason 
thereof,  to  a  verdict.  Kyle  v.  Harvey,  25  W.  Va,  732. 

b.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 


ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS.        1Q5 

the  evidence  that  the  assignment  of  -  —  to ,  dated 

— ,  18 — ,  was  made  by with  intent  to  delay,  hinder 

or  defraud  any  of  his  creditors,  and  that  when  -  — ,  (as- 
signee), took  possession  of  these  goods,  he  knew  of  this 
intent  on  the  part  of  -  — ,  then  the  plaintiff  cannot  re- 
cover by  reason  of  the  execution  of  this  assignment. 
Kyle  v.  Harvey,  25  W.  Va.  733. 

c.  Same — Recordation  of  deed  of  assignment — Knowl- 

edge of  purchaser  of  goods  assigned  of  fraudulent 

assignment — Statute  of  limitations. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  bought  the  -  —  in  con- 
troversy knowing  it  was  the  same  -    -  conveyed  by  - 
to ,  trustee,  by  a  deed  of  assignment  that  was  fraudu- 
lent and  void,  and  that  that  deed  was  of  record  in  this 
county  where  the  purchase  was  made,  then  said  plaintiff 
was  bound  to  take  notice  of  the  fact  that  said  deed  con- 
veyed no  title  to  said to  said  trustee,  then  they  must 

find  for  the  defendant,  unless  they  further  find  that  the 
plaintiff,  or  those  under  whom  he  purchased  has  had 
peaceable  possession  of  said  -  — ,  and  claiming  it  as  his 
own,  for  the  period  of  five  years.  TTiorriburg  v.  Bowen,  37 
W.  Va.  540. 

d.  Sale  of  goods  assigned  for  valuable  consideration — 

Delivery  and  possession — Statute  of  limitations — 

Execution  creditors. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  —    -  in  controversy  was  sold  to , 

for  a  valuable  consideration,  and  delivered  the  possession 
of  same  to  said  -  — ;  that  afterwards  the  said  -  -  sold 
said  -  -  to  the  plaintiff  for  a  valuable  consideration,  and 
delivered  possession  thereof  to  him;  and  if  they  further 

find  that  five  years  elapsed  from  the  said  sale  of  the 

to  the  said  first  purchaser  before  the  execution  creditor 


106  ATTACHMENTS. 

caused  his  execution  to  be  levied  thereon,  then  they  should 

find  that  the  plaintiff  is  entitled  to  said .     Thornburg 

v.  Bowen,  37  W.  Va.  540. 

e.    Actual  possession  by  purchaser  of  goods  assigned — 

Statute  of  limitations. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  and  those  under  whom  he 
holds,  had  had  actual  possession  of  the  -  in  con- 
troversy for  five  years  before  the  levy  thereon  by  the 
execution  creditors,  then  they  should  find  for  the  plaintiff. 
Thornburg  v.  Boicen,  37  W.  Va.  540. 


CHAPTER  6. 

ATTACHMENTS. 

(Action  on  bond  of  justice  of  the  peace.) 

a.  Party  leaving  the  state  not  entitled  to  exemption. 

b.  Same — Change  of  residence — Intention  of  party. 

a.  Party  leaving  the  state  not  entitled  to  exemption. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  plaintiff  left  the  state  with  the  in- 
tention of  changing  his  residence  to ,  (another  state), 

and  that  while  he  was  going  out  of  this  state  pursuant  to 
such  intention,  his  property  was  attached  and  sold,  as 
stated  in  the  evidence,  he  was  not  entitled  to  claim,  as 
against  such  levy,  an  exemption  as  a  husband  and  parent 
residing  in  this  state  and  in  such  case  the  jury  should 
find  for  the  defendant.  State  v.  Allen,  48  W.  Va.  155. 

b.  Change  of  residence — Intention  of  party. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  left  the  state  with  the  in- 


ATTEMPT— AWARDS.  107 

tention  of  removing  his  residence  to  any  place  outside  of 
the  same,  he  became  a  non-resident  of  the  state  as  soon  as 
he  started  on  such  removal,  and  to  make  the  same.  State 
v.  Allen,  48  W.  Va.  156. 


CHAPTER  7. 
ATTEMPT. 

a.    A  person  charged  with  attempting  to  commit  a  felony 
on  one  cannot  be  convicted  of  attempt  on  another. 
The  court  instructs  the  jury  that  if  they  acquit  the  pris- 
oner of  the  felony  charged  in  the  indictment,  they  cannot 
convict  of  an  attempt  to  commit  the  felony,  unless  they  be 
satisfied  beyond  a  reasonable  doubt,  that  the  prisoner  at- 
tempted to  shoot  -  — ,  as  charged  in  the  indictment,  and 
not  some  other  person.     State  v.  Meadoivs,  18  W.  Va.  674. 


CHAPTER  8. 
AWARDS. 

a.  What  deemed  an  acceptance  of. 

b.  Repudiation  of  award. 

a.    What  deemed  an  acceptance  of  an  award. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant,  on  the  -  -  day  of  -  — , 

— ,  tendered  to  the  plaintiff  the  sum  of  money  specified 

in  the  award  of  the  -  -  day  of , ,  as  and  for  the 

ascertained  price  or  value  of  the  premises  in  controversy 
and  the  property  in  said  award  referred  to,  and  also  a 
draft  of  a  deed  for  said  property  to  be  executed  by  the 
plaintiff  to  the  defendant,  and  that  afterwards,  and  before 

the  —  day  of ,  -  — ,  the  said  plaintiff  with  knowledge 

of  such  tender,  formally  refused  to  accept  or  comply  with 


1()8  AWARDS— BETTING   AND   GAMING. 

the  provisions  of  said  award,  and  gave  notice  of 
such  decision  to  the  defendant,  then  the  action  of 
the  defendant  was  a  sufficient  compliance  with  said  award. 
Gas  Co.  v.  Wheeling,  8  W.  Va.  344. 

b.     Repudiation  of  award — Demand  for  and  refusal  of 

new  appraisal. 

The  court  instructs  the  jury  that  if  after  the  appraise- 
ment made  by  -  — ,  and  -  — ,  the  plaintiff  repudiated 
said  appraisement  and  refused  to  accept  the  amount  there- 
of claimed  to  be  chargeable  to  the  defendant,  then  the 
right  afterwards  to  insist  upon  an  appraisement  to  be 
made  by  two  competent  and  disinterested  appraisers, 
the  plaintiff  to  select  one  and  the  defendant  one,  and  the 
two  so  selected  to  name  an  umpire,  as  provided  for  in 
lines  -  -  to  -  — ,  both  inclusive,  of  the  policy,  and 
if  the  jury  find  that  the  plaintiff,  for  any  cause,  refused 
to  accept  the  result  of  said  appraisal,  and  that  after  the 
knowledge  of  such  refusal  the  defendant  called  upon  the 
plaintiff  by  letter  dated  -  — ,  -  — ,  to  submit  to  such 
appraisal  as  is  provided  to  be  made  by  said  lines  - 
to  -  — ,  both  inclusive,  of  the  policy,  and  if  the  jury 
believe  from  the  evidence  that  the  plaintiff  has  failed  or 
refused  to  enter  into  an  appraisal  as  demanded  by  said 
letter,  then  the  plaintiff  cannot  recover.  Levy  v.  Insur- 
ance Co.,  58  W.  Va.  . 


CHAPTER  9. 
BETTING  AND  GAMING. 

a.    Character  of  devices  used. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  slot 
machine  described  in  the  indictment  is  a  gaming  table, 


BILLS  OF  LADING.  109 

and  that  the  said  machine  is  so  constructed  that  it  offers 
unequal  chances  to  the  player  and  exhibitor,  and  that  the 
unequal  chances  are  in  favor  of  the  exhibitor  of  said  ma- 
chine, then  the  said  slot  machine  is  a  gaming  table  of  like 
kind  and  character  to  A.  B.  C ;  E.  O,  table,  faro  bank  and 
keno  table.  State  v.  Gaughan,  55  W.  Va.  693. 


CHAPTER  10. 

BILLS  OF  LADING. 

a.  Interest  in  bills  of  lading  or  its  proceeds. 

b.  Fraudulent  transfer  of — Purpose  of — Knowledge  of. 

c.  Pledge    of   endorsed    bill    of    lading — Warrant    as 

against  third  parties. 

d.  Draft  drawn  by  seller  in  favor  of  bank — Passing  of 

title. 

e.  Charging  draft  to  account  of  pledger. 

f.  Attachment  of  goods  pledged. 

g.  Right  of  property — Indebtedness  of  pledger. 

h.     Fraudulent  transfer — Presumptions  as  to  fraud, 
i.     Purchase,  assignment  and  delivery  of  bill  of  lading. 

a.  Interest  in  bill  of  lading,  or  its  proceeds. 

The  court  instructs  the  jury  that  the  issue  for  them  to 
decide  is  simply  whether,  at  the  time  of  the  levy  of  plain- 
tiff's attachment,  the  -  -  bank  of  -  -  had  title  to  or 
lien  on  or  any  interest  in  the  property  mentioned  in  the 
bill  of  lading,  marked  "exhibit  -  •"  or  its  proceeds.  Neill 
&  Ellingham  v.  Produce  Co.,  41  W.  Va.  41. 

b.  Fraudulent   transfer — Purpose   of — Knowledge   of. 
The  court  instructs  the  jury  that  before  the  plaintiffs 

could  be  entitled  to  have  the   transfer  of   the  mer- 


HO  BILLS  OF  LADING. 

chandise  by  the  -  -  company  to  the  -  — bank  of  -  — , 
(the  petitioner),  treated  as  void  because  of  fraud,  they 
must  satisfy  the  jury,  by  the  evidence  in  the  case,  that  the 
-  company  was  actuated  by  a  fraudulent  purpose,  or 
had  knowledge  of  it  at  the  time  when  the  transfer  was 
made.  JVet'W  &  Ellin gh-am  v.  Produce  Co.,  41  W.  Va.  42. 

c.  Pledge  of  endorsed  bill  of  lading — Effect  of — War- 

rant as  against  third  persons. 

The  court  instructs  the  jury  that  the  pledge  of  an  en- 
dorsed bill  of  lading  of  goods  in  transit  by  land  or  water 
transfers  the  special  property  in  the  goods  against  third 
persons  as  well  as  against  the  pledger  himself.  Seill  & 
Wlhiyhant  v.  Produce  Co.,  41  W.  Va.  42. 

d.  Draft  drawn  by  seller  in  favor  of  bank — Passing  of 

title. 

The  court  instructs  the  jury  that  a  draft  drawn  by  a 
seller  against  a  buyer  in  favor  of  a  bank,  by  which  it  is 
discounted  or  purchased,  with  the  bill  of  lading  attached, 
passes  title  to  the  goods  and  draft  to  the  bank.  Neill  & 
!•:!  Tin  ;/Ji<i  in  v.  Produce  Co.,  41  W.  Va.  43. 

e.  As  to  duty  of  charging  draft  to  account  of  pledgor — 

Application  of  funds  of  pledgor  in  bank. 
The  court  instructs  the  jury  that  the  -  -  bank  of  - 
was  not,  either  when  it  received  notice  that  the  draft  for 
I —  was  not  paid  or  when  it  received  information  that  the 
merchandise  had  been  attached  by  the  plaintiff,  obliged 
to  charge  the  amount  of  said  draft  against  the  deposit  ac- 
count of  the  -  -  company,  the  pledgers,  or  to  apply  the 
funds  of  the  said  company  on  deposit  with  the  bank  at  the 
time  of  such  notice  or  information  to  the  payment  of  said 
draft;  and  the  failure  to  make  such  charge  or  application 
is  no  defence  to  the  claim  of  the  bank  in  this  case, 
tO  EUhiyJidin  v.  Produce  Co.,  41  W.  Va.  44. 


BILLS  OF  LADING.  HI 

f.  Attachment  of  goods  pledged — Release  of  pledge. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  before  the  attachment  of  the  plaintiff  was 
levied  on  the  -  -  merchandise,  the  bill  of  lading  for  the 
same  had  been  pledged  to  the  -  -  bank  of  -  — ,  and  that 
the  sum  for  which  the  pledge  was  given  has  not  been  paid 
to  the  bank,  or  the  pledge  released  by  it,  their  verdict  must 
be  for  the  petitioner.  Neill  &  Ellingham  v.  Produce  Co., 
41  W.  Va.  44. 

g.  Right  of  property — Indebtedness  of  pledger. 

The  court  instructs  the  jury  that  the  issue  in  this  case  is 
simply  one  to  determine  the  right  of  property  to  the  mer- 
chandise, and  not  in  any  way  to  determine  the  indebted- 
ness of  the  -  -  company,  the  pledgers,  to  the  plaintiff. 
Neill  &  Ellingham  v.  Produce  Co.,  41  W.  Va.  44. 

h.    Fraudulent  transfer — Presumption  of  fraud. 

The  court  instructs  the  jury  that  the  jury  is  not  justified 
in  presuming  fraud  from  the  mere  suspicions  which  may 
be  suggested  to  their  minds,  and  can  not  be  justified  in 
holding  that  the  bank  was  guilty  of  fraud,  unless  such 
fraud  is  clearly  shown  to  the  minds  of  the  jury  by  the 
testimony.  Neill  &  Ellingham  v.  Produce  Co.,  41  W.  Va. 
44. 

i.  Purchase,  assignment  and  delivery  of  bill  of  lading. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  -  -  bank  of  -  -  purchased  the 
draft  drawn  by  -  -  &  Co.,  on  -  — ,  the  plaintiff,  and 
dated  -  — ,  and  that  the  assignment  and  delivery  of  the 
said  bill  of  lading  was  made  to  said  bank,  their  verdict 
must  be  for  the  bank.  Neill  <&  Ellingham  v.  Produce  Co., 
41  W.  Va.  44. 


112  BONDS. 

CHAPTER  11. 
BONDS. 

a.  Assignment  of  without  recourse. 

b.  Same — Money  due  at  time  of  assignment. 

c.  Same — Effect  of  written  agreement — Risk  of  col- 

lection— Parol  evidence. 

a.  Assignment  of  without  recourse. 

The  court  instructs  the  jury  that  if  a  bond  is  assigned 
without  recourse,  it  exempts  the  assignor  from  all  liabil- 
ity by  reason  of  the  insolvency  of  the  maker  of  the  bond. 
Houston  v.  MoNeer,  40  W.  Va.  369. 

b.  Same — Money  due  at  time  of  assignment. 

The  court  instructs  the  jury  that  if  a  party  takes  a 
bond  by  assignment  to  him  without  recourse,  and  the 
amount  of  money  called  for  by  the  bond  is  due  at  the  time 
of  the  assignment,  he  is  not  entitled  to  recourse  said  bond 
because  of  any  failure  or  inability  on  his  part  to  make  the 
money  called  for  by  the  bond.  Houston  v.  McNeer,  40  W. 
Va.  369. 

c.  Same — Effect  of  written  agreement — Risk  of  collec- 

tion— Parol  evidence. 

The  court  instructs  that  if  they  believe  from  the  evi- 
dence that  on  the  day  of  -  — ,  18 — ,  plaintiff  and  de- 
fendant entered  upon  a  negotiation  for  the  sale  and  as- 
signment of  the  bond  from  A  to  B,  offered  in  evidence  in 
this  case,  and  that  the  result  of  said  negotiation  was  the 
written  agreement  upon  the  back  of  said  bond,  signed  by 
the  plaintiff  and  defendant,  then  the  legal  effect  of  said 
written  agreement  is  that  if  said  bond  was  due  and  un- 
paid at  the  time  of  said  agreement,  the  plaintiff  took  upon 


BOOMS  AND  DAMS.  113 

himself  the  risk  of  collecting  said  bond  and  the  terms  of 
said  written  agreement  cannot  be  changed  or  altered  by 
parol  evidence.  Houston  v.  McNeer,  40  W.  Va.  368. 


CHAPTER  12. 

BOOMS  AND  DAMS. 

a.  Lease  of. lands  for  boom  purposes. 

b.  Same — Knowledge  of  location  and  use  of  boom — 

Assumption  of  risks  by  lessor. 

c.  Same — Reasonable  use  and  occupation  of  boom. 

d.  Same — Wrongful   and   negligent   construction   and 

use  of  boom. 

e.  Same — Lease  for  specified  use. 

f.  Injury  to  owner  of  water  mill  by  construction  and 

use  of  boom. 

g.  Same  —  Statute   of    limitations    as    to   action    for 

injuries  caused  by. 

h.     Leasing  by  owner  of  boom  to  another — Effect  of. 
i.      Charter  rights  of  company — Authority  under, 
j.      Criminal  liability  of  boom  owners  for  obstructing 

floatable  streams  by  the  construction  of  dams. 

a.    Lease  of  land  for  boom  purposes — Negligence  in  con- 
struction and  use  of  booms. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  at  the  time  of  the  injury  complained  of 
the  plaintiff  had  leased  to  the  defendant  the  river  bank 
alleged  to  have  been  injured  for  boom-purposes,  with  con- 
templation of  constructing  and  operating  a  boom,  wherein 
the  defendant's  boom  was  constructed,  then  the  plaintiff 
can  not  recover  for  damages  resulting  from  the  continu- 
ance and  operation  of  said  boom,  unless  they  further  find 


114  BOOMS  AND  DAMS. 

that  said  injury  was  the  result  of  negligence  on  the  part  of 
the  defendant,  in  such  construction  and  use.  Rogers  v. 
Boom  Co.,  39  W.  Va.  274. 

b.  Same — Knowledge  of  location  and  use  of  boom — As- 

sumption of  risks  by  lessor. 

The  court  instructs  the  jury  that  the  letting  of  the  bank 
for  the  use  of  a  boom,  is,  in  the  absence  of  a  covenant  to 
the  contrary,  an  assumption  by  the  lessor  of  all  risks  of 
damages  or  injuries  to  said  banks  resulting  from  a  reason 
able  construction  and  use  of  said  boom,  and  for  such  dam 
ages  he  can  not,  in  such  case,  recover.  Rogers  v.  Boom 
Co.,  39  W.  Va.  274. 

c.  Same — Reasonable  use  and  operation  of  boom. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  leased  to  the  defendant  the 
river  banks  alleged  to  have  been  injured,  for  the  u  e  of  a 
boom,  that  the  plaintiff  assumed  the  risk  of  surh  damage 
as  might  result  from  the  reasonable  use  of  such  boom ;  and 
the  court  further  instructs  the  jury  that  if  they  further 
find  that  the  defendant  constructed,  used  and  operated  its 
boom  in  a  reasonable  manner  they  must  find  for  the  de- 
fendant. Rogers  v.  Boom  Co.,  39  W.  Va.  274. 

d.  Same — Wrongful  and  negligent  construction  and  use 

of  boom — Burden  of  proof. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  leased  to  the  defendant  the 
river  bank,  the  alleged  injury  to  which  is  the  cause  of  this 
suit,  for  boom  purposes,  he  assumed  the  risk  of  all 
ordinary  wear  and  tear  resulting  to  said  bank  from  the 
reasonable  and  proper  construction  and  use  of  said  boom ; 
and  that,  unless  they  find  from  the  evidence  that  the  said 
boom  was  constructed  and  used  in  a  wrongful,  improper 
or  negligent  manner,  they  must  find  for  the  defendant; 


BOOMS  AND  DAMS.  115 

and  further,  that  the  burden  is  on  the  plaintiff  to  prove 
that  said  boom  was  constructed  or  operated  in  a  wrongful, 
negligent,  or  improper  manner.  Rogers  v.  Boom  Co.,  39 
W.  V.  275. 

e.  Lease  for  specified  use. — Express   covenants — Risks 

assumed  by  lessor. 

The  court  instructs  the  jury  that  any  person  leasing 
property  for  a  specified  use,  in  the  absence  of  an  express 
covenant  to  the  contrary,  assumes  the  risk  of  the  ordinary 
wear  and  tear  of  such  property  resulting  from  such  use, 
and  the  said  lessee  is  not  liable  for  damages  to  said  prop- 
erty resulting  from  such  use,  unless  caused  by  his  wrong- 
ful or  negligent  act.  Rogers  v.  Boom  Co.,  39  W.  Va.  275. 

f.  Injury  to  owner  of  water  mill  by  construction  and 

use  of  boom. 

The  court  instructs  the  jury  that  if  they  find  from  the 
evidence  that  the  plaintiff  was,  at  the  time  the  boom  of 
the  defendant  was  put  in  -  -  River,  the  owner  of  the 
banks  and  shores  at  the  Upper  Falls  of  -  -  River,  and 
if  they  further  find  that  he  has  been  ever  since  such  owner 
of  the  banks  and  shores  at  said  point,  then  the  plaintiff  is 
entitled  to  the  use  of  the  natural  flow  of  said  river  oppo- 
site his  lands,  for  the  purpose  of  running  and  operating  a 
mill,  and  has  the  right  to  the  full  natural  flow  of  said 
stream  at  that  point,  measured  from  the  head  of  the  fall 
to  the  foot  of  the  fall,  perpendicularly,  according  to  the 
natural  flow  of  the  water  in  the  river;  and  if  the  jury 
further  find  that  the  plaintiff,  and  those  under  whom  he 
claims  title  to  said  banks  and  shores,  have  maintained  and 
used  according  to  law  a  dam  on  the  crest  of  said  falls  for 
more  than  twenty  years  next  preceding  this  suit  for  the 
purpose  of  increasing  the  said  falls  at  that  point,  then 
the  plaintiff  is  entitled  to  the  use  of  said  natural  fall  and 
dam,  according  to  the  natural  flow  of  the  river  over  the 


IK;  BOOMS  AND  DAMS. 

saiiir:  and  if  the  jury  further  find  from  the  evidence  that 
the  defendant's  boom  obstructed  the  natural  tl<>\\-  of  said 
river  below  said  fall  and  dam,  and  that  said  obstructing 
of  said  river  caused  sand  or  sediment  to  settle  in  the  river 
below  said  fall,  and  that  by  reason  of  such  settling  of  sand 
or  sediment  the  natural  bed  of  said  river  below  said  fall 
was  raised,  and  that  the  said  fall  was  thereby  reduced  or 
lowered,  and  that  the  power  of  the  water  to  run  the  said 
mill  was  thereby  lessened,  and  that  by  reason  of  the  les- 
sening of  said  power  the  plaintiff  was  unable  to  run  his 
mill  during  any  part  of  the  time  within  the  five  years 
next  preceding  the  institution  of  this  suit,  then  the  jury 
should  find  for  the  plaintiff.  Pickcns  v.  Boom  Co.,  58  W. 
Va.  — . 

g.     Same — Statute  of  limitations  as  to  action  for  injuries 

caused  by. 

The  court  instructs  the  jury  that  if  the  defendant's 
boom  has  injured  the  plaintiff,  as  alleged  in  his  declara- 
tion, the  statute  of  limitations  begins  to  run  from  the  time 
that  said  injury  occurred,  and  not  from  the  date  of  the 
erection  or  completion  of  said  boom.  Pickens  v.  Boom 
Co..  r>S  W.  Va.  — . 

h.     Same — Leasing  by  owner  of  boom  to  another — Effect 

of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant,  the  -  -  River  Boom  and 
Timber  Company,  secured  a  charter  for  the  location  of  a 
liooin  in  -  -  River,  and  constructed  the  said  boom  so  as 
to  make  it  large  enough  to  catch  logs,  and  afterwards 
leased  the  same  to  the  — River  Boom  and  Driving  company 
for  the  purpose  of  operating  the  said  boom  for  catching 
logs  and  timber,  and  if  the  jury  further  find  that  since  the 
leasing  of  said  boom  to  the  said  lessee.  The  -  -  River 
Boom  and  Driving  Company  has  used  and  operated  the 


BOOMS  AND  DAMS.  117 

said  boom,  and  additions  which  the  latter  has  built  there- 
to, and  if  the  jury  further  find  that  the  location,  building 
and  operation  of  the  said  boom  has  caused  the  injury  to 
plaintiff,  mentioned  in  his  declaration,  then  the  defendant 
can  not  escape  liability  for  such  injury,  if  any,  which  has 
occurred  within  the  five  years  next  preceding  the  institu- 
tion of  this  suit,  on  account  of  having  made  the  lease. 
Pickens  v.  Boom  Co.,  58  W.  Va.  -  — . 

i.     Charter  rights  of  company — Authority  under. 

The  court  instructs  the  jury  that  the  rights  of  the  de- 
fendant company,  under  its  charter,  do  not  authorize  it  to 
locate  a  boom  in  such  close  proximity  to  plaintiff's  mill, 
without  plaintiff's  consent,  so  as  to  impede  the  flow  of  the 
water  and  cause  sand  or  other  sediment  to  settle  below 
his  fall  and  dam;  and  if  the  jury  find  from  the  evidence 
that,  within  five  years  next  preceding  the  institution  of 
this  suit,  the  plaintiff's  mill  has  been  prevented  from  run- 
ning by  reason  of  the  lessening  of  his  water  power  and 
that  such  lessening  of  his  water  power  was  caused  by 
reason  of  the  impeding  or  backing  of  the  water  in  - 
River  on  account  of  the  location  or  operation  of  said 
boom,  and  the  settling  of  sand  or  sediment  below  the 
plaintiff's  said  water  power,  caused  thereby,  then  the  jury 
should  find  for  the  plaintiff.  Pickens  v.  Boom  Co.,  58  W. 
Va.  — . 

j.     Criminal   liability   of   boom   owner   for   obstructing1 

floatable  streams  by  the  construction  of  dams. 
The  court  instructs  the  jury  that  it  is  a  question  for  the 
jury  to  determine  from  the  evidence  whether  -  -  river, 
at  the  point  at  which  the  dam  complained  of  is  located,  is 
floatable;  and  if  the  jury  believe  from  the  evidence  that 
said  river  is  capable  of  being  used  to  float  rafts,  boats  and 
other  timber  in  time  of  rises  only,  then,  before  they  can 
find  the  defendant  guilty,  it  must  be  proven  to  the  jury 


118  BURGLARY. 

by  the  evidence,  beyond  all  reasonable  doubt,  that  the  dam 
complained  of  was  so  constructed  and  maintained  as  not 
to  permit  boats,  rafts,  and  other  timber  to  pass  without 
unavoidable  delay,  at  the  times  of  such  rises  as  made  the 
said  river  so  floatable.  State  v.  Boom  Co.,  41  W.  Va.  800. 


CHAPTER  13. 

BURGLARY. 

a.  Breaking  and  entering — Intent. 

b.  What  constitutes  breaking  and  entering. 

c.  Time  of  entering — Intent  presumed. 

d.  Same — Value  of  goods. 

e.  Ownership  of  property — Belief  of  defendant  as  to. 

f.  Same — Failure  to  establish  criminal  intent. 

g.  Larceny  openly  committed. 

h.     What  constitutes  a  dwelling  house. 

i.      Larceny  of  goods  when  no  burglary  committed. 

a.  Breaking  and  entering — Intent  to  commit  burglary 

when  no  larceny  committed. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  in  this  case  beyond  a  reasonable  doubt  that 
the  prisoner  broke  and  entered  the  store-house  of  -  — ,  as 
charged  in  the  indictment,  with  the  intent  of  committing 
larceny  therein,  they  should  find  him  guilty,  though  he 
may  not  have  been  guilty  of  any  larceny  therein.  State  v. 
Shores,  31  W.  Va.  504. 

b.  What  constitutes  breaking  and  entering. 

The  court  instructs  the  jury  that  there  is  no  necessity  in 
this  case  to  show  an  absolute  separation  of  the  particles 
of  wood,  iron,  &c.,  of  the  store-house  or  dwelling-house  of 


BURGLARY.  119 

-  referred  to  in  the  indictment  or  of  the  door  thereof, 
in  order  to  make  the  breaking  and  entering  thereof  by  the 
prisoner  burglary.  But  if  they  believe  from  the  evidence, 
beyond  a  reasonable  doubt,  that  the  prisoner  raised  the 
latch  or  pushed  open  the  door  of  said  dwelling-house  or 
store-house,  which  was  closed,  and  entered  the  same  with 
the  intent  to  commit  larceny  therein  at  the  time  and  in 
the  manner  charged  in  the  indictment,  then  the  jury 
should  find  him  guilty.  State  v.  Shores,  31  W.  Va.  504. 

c.  Time  of  entering — Intent  presumed. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  prisoner 

broke  and  entered  the  store-house  of as  charged  in 

the  indictment  in  the  night  time,  and  was  guilty  of 
larceny  therein,  then  he  is  presumed  to  have  broken  and 
entered  said  store-house  with  the  intention  of  committing 
such  larceny,  and  unless  this  presumption  is  negatived  to 
the  satisfaction  of  the  jury,  then  the  jury  should  find  said 
prisoner  guilty.  State  v.  Shores,  31  W.  Va.  504. 

d.  Same — Value  of  goods. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  in  this  case  beyond  a  reasonable  doubt  that 

the  prisoner,  on  the  night  of  the  -  -  day  of -,  18 — , 

broke  and  entered  the  store-house  of referred  to  in 

the  indictment  with  the  intent  of  committing  larceny,  and 

did  commit  larceny  therein  of  the  property  of  said of 

any  value  whatever,  then  they  should  find  the  prisoner 
guilty.  State  v.  Shores,  31  W.  Ya.  504. 

e.  Ownership  of  property — Belief  of  defendant  as  to. 
The  court  instructs  the  jury  that  if  they  are  satisfied 

from  the  evidence,  and  that  beyond  reasonable  doubt,  that 

the  prisoner,  acting  alone  or  in  concert  with  and 

,  who  stand  jointly  indicted  with  him,  broke  and  en- 


ll>0  BURGLARY. 

tered  the  dwelling  or  store-house  mentioned  in  the  in- 
dictment in  this  case  on  the  —  day  of  -  — ,  18 — ,  in  the 
night  time,  and  they  should  further  believe  from  the  evi- 
dence that  he  so  broke  and  entered  said  house  for  the  pur- 
pose only  of  taking  or  drinking  cider  therein  that  he  be- 
lieved in  good  faith  to  belong  to  him,  then  the}'  should 
find  him  not  guilty,  although  the  jury  may  believe  from 
the  evidence  that  the  cider  so  intended  to  be  taken  by  him 
belonged  to  some  one  else.  State  v.  tifiorcs,  31  W.  Va. 
504. 

f.  Same — Failure  to  establish  criminal  intent. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  in  the  case  that  the  prisoner,  together  with 
others  named  in  the  indictment,  broke  and  entered  the 
store-house  of  -  -  for  the  purpose  of  taking  therefrom 
goods  or  chattels  that  they  honestly  believed  they  had  a 
right  to  take,  then  the  criminal  intent  to  commit  larceny 
is  not  established,  then  they  should  find  the  prisoner  not 
guilty.  State  v.  Shores,  31  W.  Va.  504. 

g.  Larceny  openly  committed. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  on  the  night  of  the  —  —  day  of  -  — , 
IS — ,  -  -  was  keeping  a  store  in  the  dwelling-house  or 
store-house  mentioned  in  the  indictment,  and  that  among 
other  things  kept  for  sale  in  said  store  was  cider,  and 
that  it  was  the  custom  of  said  -  -  to  deliver  cider  to  his 
customers  in  glasses  on  the  store  counter  and  to  make  no 
demand  for  pay  for  the  cider  sold  to  his  customers  until 
they  had  drunk  the  same,  and  if  they  are  further  satisfied 
from  the  evidence  that  at  the  time  aforesaid  and  during 
the  usual  business  hours  of  said  -  —  's  store,  the  prisoner 
and  -  -  and  -  -  and  -  -  being  in  said  store,  the  pris- 
oner ordered  cider  for  them,  and  that  the  cider  was  poured 
out  from  them  into  glasses  and  placed  on  the  store  counter, 


BURGLARY.  121 

and  that  for  some  reason  the  prisoner,  said  -  -  and  - 
went  out  of  the  said  house  and  in  a  few  minutes  returned 
and  found  said  store-house  or  dwelling-house  door  locked, 
and  that  it  was  still  the  usual  business  hours  of  the  store 
and  the  said  store-house  was  still  lighted  as  in  business 
hours,  and  the  prisoner  then  and  there  alone,  or  in  con- 
cert with  said  -  — ,  broke  and  entered  the  said  store- 
house, and  that  the  prisoner  then  and  there  appropriated 
to  his  own  use  and  drank  a  part  or  all  of  the  cider  so 
poured  out  for  him,  and  they  further  believe  from  the  evi- 
dence that  the  prisoner  so  appropriated  and  drank  said 
cider  openly  and  in  the  presence  of  said  -  -  and  one  of 
the  servants  of  said  -  — ,  who  then  worked  in  said  house 
and  was  well  known  to  said  -  — ,  and  that  one  -  -  was 
also  present  when  said  cider  was  so  taken  and  drunk,  and 
that  said  -  — ,  -  -  and  said  servant  were  all  acquainted 
with  said  -  — ,  and  that  the  said  -  — ,  -  -  and  said 
servant  were  in  no  way  guilty  in  the  taking  of  said  cider, 
then  the  jury  should  not  on  the  account  of  these  circum- 
stances treat  such  taking  or  drinking  of  said  cider  as  a 
larceny  thereof.  State  v.  Shores,  31  W.  Va.  504. 

h.    What  constitutes  a  dwelling  house. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  —  -  held  the  possession  of  said  house  at 
the  time  alleged  in  the  indictment,  and  that  he  used  and 
occupied  said  house  as  a  dwelling,  then,  in  contemplation 
of  law,  said  house  was  the  dwelling  house  of  said  -  — , 
although  he  may  have  absented  himself  therefrom  for 
several  months,  and  although  he  may  have  had  another 
dwelling  house  during  the  same  time.  State  v.  Williams, 
40  W.  Va.  269. 

i.    Larceny  of  goods  when  no  burglary  committed. 

The  court  instructs  the  jury  that  although  they  should 
believe  from  the  evidence  that  no  dwelling  house  was 


122  CARRIERS. 

broken  or  entered,  as  alleged  in  the  indictment,  yet  if 
they  believe  from  the  evidence  that  the  defendant  stole 
and  carried  away  any  of  the  goods  of  -  — ,  as  alleged  in 
the  indictment,  then  they  should  find  him  guilty  of  the 
larceny  of  said  goods.  State  v.  Williams,  40  W.  Va.  269. 


CHAPTER  14. 
CARRIERS. 

A.  CARRIERS  OF  FREIGHT. 

B.  CARRIERS  OF  LIVE  STOCK. 

C.  CARRIERS  OF  PASSENGERS. 

D.  EQUIPMENTS. 

E.  CONTRIBUTORY   NEGLIGENCE. 

A.      CARRIERS  OF  FREIGHT. 

a.  Special  contracts — Shipments  under — Recovery  un- 

der. 

b.  Same — Bills  of  lading  as  evidence  of. 

c.  Same — Ordinary  care — Unforeseen  accidents. 

d.  Ordinary  care — No  liability  when  exercised. 

e.  Delivery  of  and  refusal  to  receive  goods. 

f.  Freight  shipped  by  river — Carriers  not  insurers  of. 

g.  Same — Burden  of  proof, 
h.  Same. 

i.      Right  of  action — How  defeated — Exceptions  as  to. 

a.  Special  contracts — Shipment  under — Recovery  under. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  oil  referred  to  in  the  declaration  in 
this  suit  was  contracted  to  be  shipped  and  transported 
from,  and  to  the  places  mentioned  in  the  declaration,  un- 


CARRIERS.  123 

der  special  contracts,  the  plaintiff  can  only  recover  under 
such  special  contracts,  and  the  terms  and  conditions  of 
the  same.  Rathlone  v.  Railroad  Co.,  1  W.  Va.  92. 

b.  Same — Bills  of  lading — Evidence  of. 

The  court  instructs  the  jury  that  bills  of  lading  de- 
livered by  the  defendant  (the  R.  E.  Co.) ;  of  his  agent  to 
the  plaintiff  and  given  in  evidence  by  him  to  the  jury,  are 
sufficient  evidence  of  special  contracts,  and  the  terms  un- 
der which  the  oil  in  said  bills  of  lading  respectively  men- 
tioned, were  to  be  transported  by  the  defendant.  Rath- 
bone  v.  Railroad  Co.,  1  W.  Va.  92. 

c.  Same — Ordinary  care — Unforseen  accidents. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  said  oil  alleged  to  have  been  lost  and 
destroyed,  was  shipped  and  transported  under  special  con- 
tracts, and  was  so  lost  and  destroyed,  and  that  in  trans- 
porting the  same,  the  defendant,  its  agents  and  servants 
exercised  such  care  as  a  prudent  man  would,  as  to  his 
own  goods,  to  protect  said  oil  from  accidents  in  its  trans- 
portation, and  that  said  fire  was  the  result  of  an  unfore- 
seen accident,  which  could  not  have  been  prevented  by 
ordinary  diligence,  then  the  plaintiff  ought  not  to  recover 
in  this  suit,  for  the  oil  so  lost  by  fire.  RatTibone  v.  Rail- 
road Co.  1.  W.  Va.  93. 

d.  Ordinary  care — No  liability  when  exercised. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence,  the  said  oil  alleged  to  have  been  lost  and 

destroyed  and  not  delivered  in ,  referred  to  in  the 

evidence  in  this  suit,  was  lost  by  fire — and  the  defendant, 
its  agents  and  servants,  exercised  ordinary  care  and  dili- 
gence in  transporting  the  same,  the  defendant  is  not 
liable.  Rathbone  v.  Railroad  Co.,  1  W.  Va,  92. 


124  CARRIERS. 

e.  Delivery  and  refusal  to  receive  goods  shipped. 

The  court  instructs  the  jury  that  if  they  find  from  the 
evidence  that  the  defendant,  or  any  one  else  offered  to 
deliver  to  the  consignees,  at  their  place  of  business  in 

— ,  the  goods  shipped  by  -  -  on  the  -  -  day  of  -  — , 
from  -  — ,  and  the  said  -  -  refused  to  receive  the  same, 
then  they  should  find  for  the  defendant.  Ryland  v.  Rail- 
way Co.,  55  W.  Va.  183. 

f.  Carrier  not  insurer  of  freight  shipped  by  river — Care- 

lessness and  negligence — Due  diligence. 
The  court  instructs  the  jury  that  -      -  is  not  an  in- 
surer of  the  freight  shipped  on  the  -      -  river.     In  this 
suit  it  cannot  be  made  liable,  unless  the  jury  are  satisfied 
that  it  was  guilty  of  carelessness  and  negligence  in  allow- 
ing the  -     -  to  remain  an  unreasonable  time  in  the  - 
chute,  upon  which  the  barge  carrying  the  plaintiff's  salt 
was  sunk;  or  that  by  due  diligence  and  care  on  the  part 
of  itself  or  its  agent  it  could  have  discovered  and  removed 
the  same.    Tonijtkins  \.  Kanaicha  Board,  21  W.  Va.  230. 

g.  Same — Burden  of  proof. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  -  chute  was  obstructed  by  a  - 
lying  therein,  by  reason  of  which  the  barge  was  sunk,  and 
plaintiff's  salt  was  lost,  then  upon  proof  of  such  obstruc- 
tion the  burden  of  proof  is  on  the  defendant  to  show  that 
it  used  due  diligence  to  ascertain  and  remove  said  ob- 
struction before  said  loss.  Tompkins  v.  Kanaicha  Board, 
21  W.  Va.  231. 

h.    Same. 

The  court  instructs  the  jury  that  the  burden  of  proof 
in  this  suit  is  on  the  plaintiff  to  show  that  there  was 
negligence  and  carelessness  on  the  part  of  the  defendant, 
and  unless  he  so  proves,  the  jury  must  find  for  the  de- 
fendant ;  but  the  question  of  negligence  or  carelessness  is 


CARRIERS.  125 

oue  for  the  consideration  and  decision  of  the  jury  upon 
all  the  evidence  before  them  and  upon  the  duties  imposed 
upon  the  defendant  by  law ;  and  any  want  of  diligence  in 
not  performing  such  duty  is  negligence  and  carelessness 
on  its  part.  Tompkins  v.  Kanawha  Board,  21  W.  Va.  231. 

i.    Right  of  action — How  defeated — Exception  as  to. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  if  the  loss  to  the  plaintiff  occurred  in 
a  material  part  by  the  carelessness  and  want  of  skill  of 
those  having  charge  of  the  steamer —  -  and  barge,  which 
carried  plaintiff's  salt,  the  plaintiff  cannot  recover  in  this 
action;  but  that  such  carelessness  or  want  of  skill  on  the 
part  of  those  having  charge  of  the  steamer  -  -  and  barge 
must  have  been  to  such  an  extent,  as  to  have  contributed 
to  the  loss,  which  ordinary  diligence  might  have  avoided. 
Tompkins  v.  Kanawha  Board,  21  W.  Va.  230. 

B.       CARRIERS  OF  LIVE  STOCK. 

a.  Special  contracts — Exemption  from  liability  under 

—Negligence. 

b.  Same — When  unlawful. 

c.  Same — Delay  in  shipment  under. 

d.  Same — Injuries  resulting  from  negligence. 

e.  Same — Modification  of — Reasonable  and  just  modi- 

fications. 

f.  Same — Injuries  resulting  from  heat  of  weather. 

g.  Same. 

h.     Means  of  transportation — Acceptance   of   by   ship- 
per. 

i.      Same — Consideration  of  on  question  of  liability, 
j.      Delay  in  shipment. 

a.    Special   contracts — Exemption   from  liability  under, 

unless  negligence  be  shown. 
The  court  instructs  the  jury  that  if  they  believe  from 


CARRIERS. 


the  evidence  that  the  contract  to  carry  safely  the  - 
alleged  in  the  plaintiff's  declaration,  was  subject  to  the 
condition  that  the  defendant,  (R.  R.  Co.)  should  not  be 
liable  for  damages  or  injury  to  the  live  stock  mentioned 
in  the  declaration,  whilst  in  the  cars  of  the  defendant,  or 
for  delay  in  the  carriage  of  said  stock,  or  escape  thereof 
from  the  cars,  except  such  as  might  arise  from  the  gross 
negligence  of  the  agents  or  officers  of  the  defendant,  act- 
ing in  the  discharge  of  their  duties,  then  they  should  find 
for  the  defendant.  Skeels  v.  Railroad  Co.,  3  W.  Va.  558. 

b.  Same  —  Unlawful,  when  seeks  to  exempt  carrier  from 

responsibility  for  negligence  under. 
The  court  instructs  the  jury  that  the  defendant  in  this 
case  could  not  lawfully  stipulate  by  special  contract  or 
otherwise  for  exemption  from  responsibility  for  the  negli- 
gence of  itself  or  its  servants.  Maslin  v.  Railroad  Co.,  14 
W.  Va.  184. 

c.  Same  —  Delay  in  shipment. 

The  court  instructs  the  jury  that  the  defendant  could 
not  lawfully  stipulate  by  special  contract  or  otherwise  for 
exemption  from  responsibility  for  the  negligence  of  itself 
or  its  servants;  and  if  the  jury  believe  from  the  evidence 
that  there  was  an  unreasonable  delay  in  transporting  the 
cattle  referred  to  in  this  case  from  -  -  station  to  the 
city  of  -  -  by  the  defendant,  and  that  such  delay  was 
caused  by  the  negligence  of  the  defendant  or  its  servants, 
they  should  find  for  the  plaintiff.  Bosley  v.  Railroad  Co., 
54  W.  Va.  571. 

d.  Same  —  Injury  resulting  from  negligence. 

The  court  instructs  the  jury  that  although  they  may  be- 
lieve from  the  evidence  that  the  paper  writing  dated  —  , 
18  —  ,  entitled  "stock  contract"  was  fairly  executed,  yet 
if  they  believe  from  the  evidence,  that  the  said  cattle  in 


CARRIERS.  127 

their  transportation  by  the  defendant  from  -     -  to  - 
sustained  loss  and  injury,  and  that  said  loss  and  injury 
resulted  from   the   negligence   of   the    defendant    or   its 
servants,  then  they  must  find  for  the  plaintiff.    Maslin  v. 
Railroad  Co.,  14  W.  Va.  184. 

e.  Same — Modification  of — Carrier  exempt  under  if  such 

modification  be  just  and  reasonable. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  cattle  mentioned  in  the  declaration 
were  recived  and  taken  by  the  defendant  at  -  — ,  to  be 
carried  and  delivered  to  -  — ,  at  -  — ,  by  virtue  of  and 
upon  the  terms  and  stipulations  of  the  contract  of  ship- 
ment of  the  -  -  day  of  -  — ,  18 — ,  then  the  defendant 
was  not  liable  as  a  common  carrier  for  the  safe  and  care- 
ful carriage  and  delivery  of  the  same,  so  far  as  such 
liability  was  modified  by  any  special  contract  limiting  the 
same,  provided  such  modifications  are  just  and  reasonable 
in  law.  Maslin  v.  Railroad  Co.,  14  W.  Va.  186. 

f.  Same — No  liability  under  for  injuries  resulting  from 

heat  of  weather,  unless  negligence  be  shown. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  -  -  head  of  cattle  mentioned  and 
described  in  the  declaration,  and  delivered  by  the  plain- 
tiff to  the  defendant,  at  -  — ,  to  be  transported  to  -  — , 
were  so  delivered  by  the  plaintiff,  and  so  received  by  the 
defendant,  to  be  transported  upon  the  stipulations,  condi- 
tions and  understandings  expressed  in  the  agreement  in 
writing  between  the  plaintiff  and  defendant,  dated  the 

-  day  of ,  18 — ,  and  if  the  jury  further  believe  that 

the  plaintiff  suffered  no  other  damage  from  the  undertak- 
ing of  the  defendant  in  relation  to  the  said  cattle  than 
what  resulted  from  heat  of  the  weather,  then  they  must 
find  for  the  defendant,  unless  they  further  find  that  such 
injury  might  have  been  prevented  by  the  exercise  by  de- 


128  CARRIERS. 

fendant's  servants  of  such  care  and  diligence  as  was 
practicable  under  the  circumstance.  Uaslin  v.  Railroad 
Co.,  14  W.  Va.  180. 

g.    Same. 

The  court  instructs  the  jury  that  if  they  believe-  from 
the  evidence  that  the  cattle  mentioned  in  the  declaration 
were  taken  and  received  by  the  defendant  at  -  — ,  to  be 

carried  and  delivered  to ,  at  -  — ,  upon  the  terms  and 

stipulations  of  the  contract  of  -  -  of  -  — ,  18 — ,  the  de- 
fendant was  not  liable  to  the  plaintiff  for  loss  and  injury 
to  the  said  cattle  which  resulted  from  heat,  unless  they 
should  further  find  that  defendant  or  its  servants  were 
guilty  of  negligence  in  not  employing  such  means  to  alle- 
viate such  consequences  as  were  reasonable  and  practica- 
ble under  the  circumstances.  Maslin  v.  Railroad  Co.,  14 
W.  Va.  187. 

h.  Carrier  not  required  to  furnish  means  of  transporta- 
tion other  than  accepted  by  shipper. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  put  his  cattle  upon  the  slow 
stock  train  of  the  defendant  to  be  carried  upon  it  to  -  — , 
and  paid  the  hire  therefor  there,  then  the  plaintiff  can- 
not, under  the  pleadings  in  this  case,  recover  any  damages 
because  of  any  failure  of  the  company  to  furnish  cars  for 
the  shipment  of  said  cattle  at  an  earlier  or  different  time 
upon  the  request  of  the  plaintiff.  Maslin  v.  Railroad  Co., 
14  W.  Va.  184. 

i.    Means  of  transportation  not  to  be  considered  on  ques- 
tion of  liability. 

The  court  instructs  the  jury  that  the  jury  cannot  con- 
sider, on  the  question  of  liability  of  the  defendant,  the 
fact  that  the  cattle  were  not  shipped  on  a  different  train, 


CARRIERS.  129 

or  were  shipped  on  the  train  on  which  they  were  carried. 
Maslin  v.  Railroad  Co.,  14  W.  Va.  185. 

j.  Delay  in  shipping — Assessment  of  damages  caused  by. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  there  was  such  unreasonable  delay  on 
the  part  of  the  defendant  or  its  servants  in  transporting 
said  cattle  to  the  city  of  -  — ,  they  should  find  for  the 
plaintiff;  and  if  they  further  believe  from  the  evidence 
that  the  plaintiff  was  damaged  by  said  delay,  in  assessing 
such  damages  they  should  take  into  consideration  all 
damages  naturally  and  proximately  resulting  from  such 
delay.  Bosley  v.  Railroad  Co.,  54  W.  Va.  571. 

C.      CARRIERS  OF  PASSENGERS. 

1.      DEGREE  OP  CARE  REQUIRED  AND  LIABILITY  OF  CARRIERS  IN- 
GENERAL. 

a.  Duty  to  exercise  greatest  care  and  diligence. 

b.  Management  of  trains — Care  required  in. 

c.  Liability  of  carrier  for  wrongful  act  of  agent. 

d.  Liability  of  carrier  for  negligence  of  agents. 

e.  Liability  of  carrier  for  negligence  of  contractors. 

f.  Excessive  fares — Schedule  of  rates. 

g.  Acts  of  conductors  in  collecting  excessive  fares. 

a.    Duty  to  exercise  greatest  care  and  diligence. 

The  court  instructs  the  jury  that  the  law,  in  tenderness 
to  human  life  and  limbs,  holds  railroad  companies  liable 
for  the  slightest  negligence  and  compels  them  to  repel,  by 
satisfactory  proofs,  every  imputation  of  such  negligence. 
When  carriers  undertake  to  convey  passengers  by  the 
powerful,  but  dangerous  agency  of  steam,  public  policy 
and  safety  require  that  they  be  held  to  the  greatest  pos- 
sible care  and  diligence.  Any  neglect  or  default  in  such 
cases  makes  such  carriers  liable  in  damages  under  the 
statute.  Searles  v.  Railway  Co.,  32  W.  Va.  374. 


130  CARRIERS. 

b.  Management  of  trains — Care  required  in. 

The  court  instructs  the  jury  that  a  railroad  company  is 
held  by  the  law  to  the  utmost  care,  not  only  in  the  man- 
agement of  its  trains  and  cars,  but  also  in  the  structure, 
repair  and  care  of  the  track  and  bridges  and  all  other 
arrangements  necessary  to  the  safety  of  passengers. 
Searlcs  v.  Railway  Co.,  32  W.  Va.  374. 

c.  Liability  of  carrier  for  wrongful  acts  of  agent — Ar- 

rest of  passenger  while  on  train. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff,  without  just  cause,  was 
arrested  after  he  became  a  passenger  on  one  of  the  de- 
fendant's trains,  and  during  the  time  that  he  was  on  such 
train,  either  by  the  conductor  in  charge  of  said  train,  or 
by  the  policeman  -  — ,  by  order  of  said  conductor,  that 
the  act  of  the  conductor,  or  of  the  said  policeman  acting 
under  the  orders  of  the  said  conductor,  was  the  act  of  the 
defendant.  Gillingham  v.  Railroad  Co.,  35  W.  Va.  602. 

d.  Liability  of  carrier  for  negligence  of  agents. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  was  injured  by  being  struck 
by  a  stone  standing  in  dangerous  proximity  to  the  de- 
fendant's railroad  track,  and  that  the  position  of  said 
stone  was  known  to  the  defendant,  or  the  agents  of  said 
defendant,  or  might  have  been  known  to  them  by  the  use 
of  ordinary  care  and  diligence,  and  there  was  such  negli- 
gence of  such  agents  in  failing  to  remove  said  stone,  or  in 
failing  to  use  care  and  diligence  in  ascertaining  whether 
said  stone  was  in  dangerous  proximity  to  the  track  of  said 
defendant,  such  negligence  of  such  agents  was  the  negli- 
gence of  the  defendant.  Carrico  v.  Railway  Co.,  39  W. 
Va.  95. 

e.  Same — Contractors. 

The  court  instructs  the  jury  that  if  they  believe  from 


CARRIERS.  131 

the  evidence  that  the  defendant  company,  while  using  its 
track  for  the  carriage  of  passengers,  engaged  in  a  work  to 
be  done  on  its  road,  or  in  immediate  proximity  to  its 
track,  negligence  in  the  performance  of  which  would,  in 
the  estimation  and  opinion  of  a  reasonable,  cautious  per- 
son, involve  the  hazard  of  obstruction  to  the  passage  of 
cars,  and  an  accident  to  a  passenger  is  caused  by  an  ob- 
struction arising  from  negligence  in  the  performance  of 
the  work,  it  is  no  defence  for  said  railroad  company  to 
show  that  it  had  placed  the  work  in  the  hands  of  a  con- 
tractor, and  that  the  obstruction  was  caused  by  the  care- 
lessness of  one  of  his  employes.  Carrico  v.  Railway  Co., 
39  W.  Va.  103. 

f.  Excessive  fares — Schedule   of  rates — Rules  of  com- 

pany— Violation  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  conductor  collected  -  -  cents,  and 
the  company  had  a  schedule  of  rates  for  the  government 
of  the  conductors  in  collecting  fares  from  passengers,  and 
a  duplicate  of  it  was  furnished  to  the  conductor,  and  it 
was  against  the  rules  of  the  company  for  the  conductor  to 
charge  the  plaintiff  more  than  the  rates  fixed  by  said 
schedule,  and  if  said  rates  were  not  more  than  the  law 
allowed,  then  the  jury  must  find  for  the  defendant.  Hall 
v.  Railroad  Co.,  44  W.  Va.  41. 

g.  Same — Act  of  conductor  in  collection  of  excessive 

fares. 

The  court  instructs  the  jury  that  before  they  can  find 
for  the  plaintiff,  they  must  believe  from  the  evidence,  to 
the  exclusion  of  every  reasonable  doubt,  that  the  company 
charged  the  plaintiff  more  than  was  allowed  by  law,  and 
that  notwithstanding  the  conductor  charged  -  -  cents, 
which  was  more  that  the  law  allowed,  if  the  jury  believe 


132  CARRIERS. 

that  the  rules  of  the  company  did  not  allow  the  conductor 
to  charge  the  plaintiff  more  than  was  allowed  by  law,  and 
that  he  acted  in  violation  of  the  rules  of  the  company,  the 
act  of  the  conductor  was  not  the  act  of  the  company. 
Hall  v.  Railroad  Co.,  44  W.  Va.  41. 

2.      THE  RELATION  OF  CARRIER  AND  PASSENGERS. 

a.  What  necessary  to  become  a  passenger — Intention 

of  party  as  to — Party  coming  to  board  train — 
When  purchase  of  ticket  not  necessary. 

b.  Fraud  in  procurement  of  ticket. 

a.  What  necessary  to  become  a  passenger — Intention  of 
party  as  to — Party  coming  to  depot  to  board  train — 
Coming  within  a  reasonable  time  before  departure 
of  train — When  purchase  of  ticket  not  necessary. 
The  court  instructs  the  jury  that  to  become  a  passenger 
and  entitled  to  protection  as  such  it  is  not  necessary  that 
a  person  shall  have  entered  a  train  or  paid  his  fare,  but  he 
is  a  passenger  as  soon  as  he  becomes  within  the  control  of 
the  carrier  at  the  station,  through  any  of  the  usual  ap- 
proaches, with  the  intent  to  become  a  passenger.  And  the 
jury  are  further  instructed  that  if  they  believe  from  the 
evidence  that  the  plaintiff,  on  the  -  -  day  of  -  — ,  18 — , 
went  to  the  defendant's  depot  at  the  town  of  -  — ,  by  one 
of  the  usual  routes  thereto,  for  the  purpose  and  with  the 
intention  of  taking  the  next  train,  and  stepped  upon  the 
platform  of  said  depot  with  the  intention  and  purpose  of 
becoming  such  passenger,  the  plaintiff  then  became,  in 
contemplation  of  law,  a  passenger  of  the  defendant,  pro- 
vided she  came  to  said  depot  and  platform  within  a  rea- 
sonable time  before  the  time  for  the  departure  of  said 
train,  whether  or  not  she  had  purchased  a  ticket  from  the 
defendant  or  its  agent.  Barker  v.  Railroad  Co.,  51  W. 
Va.  430. 


CARRIERS.  133 

b.    Fraud  in  procurement  of  ticket — Right  of  carrier  to 

rescind  contract  for. 

The  court  instructs  the  jury  that  the  possession  of  a 
railroad  ticket  is  not  conclusive  evidence  of  the  right  of 
the  holder  to  transportation ;  that  the  circumstances  may 
be  such  that  it  will  be  a  proper  subject  of  investigation 
whether  the  holder  of  the  ticket  has  not  got  possession 
of  it  by  fraud,  and  the  jury  are  therefore  further  in- 
structed that  if  they  believe  from  the  evidence  in  this  case 

that  the  ticket  was  obtained  by ,  editor  of  the , 

from  the  defendant,  by  the  representation  to  the  said  rail- 
road company  that  — ,  the  plaintiff,  was  in  the  employ  of 
the  said  — ,  and  a  member  of  the  staff  of  the  — ,  and  if 
they  further  believe  that  this  representation  was  false, 
and  if  they  further  believe  that  by  means  of  such  false  rep- 
resentation the  name  of ,  the  plaintiff,  was  inserted 

in  said  ticket,  that  in  such  case^the  jury  may  consider 
such  false  representations  to  find  whether  such  ticket  was 

fraudulently  obtained  by ,  and  if  they  believe  that 

such  ticket  was  fraudulently  obtained  from  the  defendant, 
then  in  such  case  the  defendant  had  a  right,  upon  the  dis- 
covery of  such  fraud,  to  rescind  the  contract  and  take  up 
the  ticket  Moore  v.  Railroad  Co.,  41  W.  Va.  175. 

3.      ARREST  OP  PASSENGERS. 

a.  When  railroad  company  not  liable  for  acts  of  con- 

ductor— Scope  of  authority  of  conductor. 

b.  Same. 

c.  Same. 

d.  Arrest  of  passenger  armed  with  dangerous  weapons. 

a.    When  carrier  not  liable  for  acts  of  conductor — Scope 

of  authority  of  conductors. 

The  court  instructs  the  jury  that  the  plaintiff  can  not 
recover  in  this  case  unless  the  acts  done  by  the  conductor 
in  causing  the  arrest  of  the  plaintiff  were  within  the  scope 


134  CARRIERS. 

of  his  employment  by  the  defendant  railroad  company; 
and  such  acts,  to  be  within  the  scope  of  his  employment, 
must  be  such  as  he  would  be  usually  and  naturally  called 
upon  to  do  while  discharging  his  duties  as  a  railroad  con- 
ductor in  and  about  the  business  of  the  defendant  rail- 
road company.  Gillingham  v.  Railroad  Co.,  35  W.  Va. 
603. 

b.  Same. 

The  court  instructs  the  jury  that  it  is  not  sufficient  that 
the  acts  complained  of  were  done  during  the  time  of  the 
conductor's  employment  by  the  railroad  company,  or  at 
the  place  where  his  duties  called  him  to  be.  There  must 
be  something  more,  something  which  he  was  authorized  by 
the  defendant  company  to  do,  or  which  he  did  do  while 
acting  as  such  conductor,  in  the  scope  of  his  duties  and 
employment.  Gillingham  \.  Railroad  Co.,  35  W.  Va.  603. 

% 

c.  Same. 

The  court  instructs  the  jury  that  unless  the  act  done  by 
the  conductor  in  causing  the  arrest  of  the  plaintiff  was 
authorized  by  the  railroad  company,  or  was  properly  and 
legitimately  within  the  scope  of  his  employment,  you 
must  find  for  the  defendant.  Gillingham  v.  Railroad  Co., 
35  W.  Va.  603. 

d.  Arrest  of  passenger  armed  with  a  dangerous  weapon. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  plaintiff,  while  armed  with  dan- 
gerous or  unlawful  weapons,  was  on  the  train  of  the  de- 
fendant, within  the  corporate  limits  of  ,  and  it  be- 
came known  to  the  police  of  that  town  that  he  was  so 
unlawfully  armed,  the  police  had  the  right  to  arrest  him 
on  the  cars  and  take  him  therefrom,  and  the  defendant, 
the  -  -  railroad  company,  would  not  be  liable  for  such 
arrest.  Claiborne  v.  Railway  Co.,  46  W.  Va.  369. 


CARRIERS.  135 

4      EJECTION  OP  PASSENGERS. 

a.  Passenger  holding  ticket  fraudulently  procured. 

b.  Same — Knowledge    of   passenger   that    ticket    was 

void — Duty  of  passenger  to  enquire  as  to  validity 
of  ticket. 

c.  Same — With  whom  power  to  eject  rests. 

e.  Unauthorized     assault    on     passenger — Disorderly 

conduct  of  passenger. 

f.  Same — Special  instructions  of  carrier  as  to  move- 

ment of  trains — Acts  of  conductor  when  within 
his  scope  of  duty  and  power. 

a.  Passenger  holding  fraudulent  ticket — Right  of  car- 
rier to  eject. 

The  court  instructs  the  jury  that  if  the  jury  believe 
from  the  evidence  that  the  ticket  was  issued  in  considera- 
tion of  the  publication  by  -  — ,  editor  of  -  — ,  of  the  time 
card  and  local  notices  in  the  -  — ,  of  the  defendant  for 
the  year  -  — ,  and  if  they  further  believe  from  the  evi- 
dence that  the  plaintiff  had  knowledge  of  the  said  terms 
upon  which  said  ticket  was  issued  and  delivered  to  the 
said  -  — ,  and  if  they  further  believe  from  the  evidence 
that  there  was  no  other  consideration  paid  for  said 
ticket,  and  if  they  further  believe  from  the  evidence  that 
the  said  ticket  was  issued  in  the  name  of  the  plaintiff  up- 
on the  representation  made  by  -  — ,  editor  of  the  -  — , 
that  the  said  plaintiff  was  on  the  staff  of  the  -  -  at  the 
time  the  said  ticket  was  delivered  to  the  said  -  —  and 
received  by  the  plaintiff,  and  if  they  further  believe  from 
the  evidence  that  the  representations  made  by  the  said 

— ,  editor  of  the ,  that  the  said  plaintiff  was  on  the 

staff  of  the  said ,  were  false,  and  that  those  false  repre- 
sentations induced  the  railroad  company  to  insert  the 
name  of  said  plaintiff  in  said  ticket,  then,  in  such  case,  up- 
on the  discovery  by  the  defendant  of  such  misrepresenta- 
tions, said  defendant  had  the  right  to  cancel  said  ticket 


• 
136  CARRIERS. 

and  take  the  same  from  the  possession  of  the  plaintiff, 
and  had  the  further  right  to  demand  from  the  said  plain- 
tiff the  amount  necessary  to  transport  him  from  -  -  to 
— ;  and  upon  the  failure  upon  the  part  of  the  plaintiff 
to  pay  the  conductor  the  amount  of  fare  necessary  for 
such  transportation,  the  conductor  had  a  right  to  remove 
said  plaintiff  from  its  car,  using  only  such  force  as  was 
necessary  to  accomplish  this  purpose.  Moore  v.  Railroad 
Co.,  41  W.  Va.  176. 

b.  Same — Knowledge  of  passenger  that  ticket  was  void 

— Duty  of  passenger  to  enquire  as  to  validity  of 

ticket. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  before  the  day  that  the  plaintiff  was  re- 
moved from  defendant's  car  by  the  conductor,  the  said 
conductor  notified  the  plaintiff  that  he  would  not  receive 
said  ticket  for  his  fare  on  said  railroad,  and  if  they  further 
believe  that  the  said  conductor  notified  the  plaintiff  that 
he  had  better  send  said  ticket  to  the  general  office  of  the 
railroad  company,  or  call  there  in  person  and  make  en- 
quiry as  to  what  was  wrong  with  said  ticket,  and  if  they 
further  believe  from  the  evidence  that  before  said  plain- 
tiff took  passage  on  the  train  of  the  defendant  from  — 
to  -  — ,  he  had  an  opportunity  offered  him  of  making  an 
investigation  as  to  the  validity  of  his  ticket,  and  failed, 
neglected,  or  refused  to  do  so,  then  in  such  case  the  plain- 
tiff was  guilty  of  negligence  in  not  making  the  necessary 
enquiry  as  to  the  validity  of  said  ticket;  and  the  jury 
should  take  into  consideration  such  failure  on  the  part 
of  the  plaintiff,  in  arriving  at  their  verdict  in  this  case. 
Moore  v.  Railroad  Co.,  41  W.  Va.  177. 

c.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 


i 
CARRIERS.  137 

the  evidence  that  the  plaintiff  had  notice  that  the  railroad 
company  would  not  receive  said  ticket  for  his  fare  for 
travel  on  its  railroad,  a  sufficient  length  of  time  before 
he  took  passage  on  its  train,  the  day  he  was  removed 
therefrom,  to  have  enabled  him  to  have  investigated  said 
ticket,  and  to  enquire  into  the  reasons  of  this  refusal, 
at  the  general  office  of  said  defendant,  and  if  they  further 
believe  from  the  evidence  that  the  said  plaintiff  failed  to 
make  such  enquiries  as  to  the  validity  of  his  ticket,  then 
he  was  guilty  of  negligence  in  going  upon  the  defend- 
ant's train  without  necessary  means  to  pay  his  fare  as  a 
passenger,  and  after  having  notice  that  his  ticket  would 
not  be  accepted;  and  the  jury  should  consider  such  neglect 
on  the  part  of  the  plaintiff,  in  arriving  at  their  verdict 
in  this  case.  Moore  v.  Railroad  Co.,  41  W.  Ya.  178. 

d.  Same — Power  to  eject — With  whom  rests. 

The  court  instructs  the  jury  that  when  a  railroad  train 
is  running  on  the  main  line  of  its  road  in  the  course  of 
its  regular  run,  and  is  manned  by  a  conductor,  engineer, 
fireman  and  brakeman,  like  the  one  shown  in  the  evidence 
here,  in  the  absence  of  proof  to  the  contrary,  all  power  to 
eject  rests  impliedly,  under  the  law,  with  the  conductor, 
and  such  power  must  be  exercised  either  by  such  con- 
ductor or  some  one  else  acting  under  or  by  his  order  or 
command.  Landers  v.  Railroad  Co.,  46  W.  Va.  498. 

e.  Unauthorized  assault  on  passenger — Disorderly  con- 

duct of  passenger — Preponderance  of  evidence. 

The  court  instructs  the  jury  that  if  they  believe  from 

a  preponderance  of  the  evidence  that  the  plaintiff,  at  the 

.time  the  injury  complained  of,  while  riding  as  a  passenger 

on  the  defendant's  train,  was  cursing  or  behaving  in  a 

riotous  or  disorderly  manner,  then  it  was  the  privilege 

of  the  defendant  to  put  him  off  such  train,  and  the  law 


i:;s  CARRIERS. 

gave  the  conductor  and  trainmen  in  charge  of  such  train 
the  right  to  use  such  force  as  was  necessary  for  that 
purpose ;  but  no  such  conduct  on  the  part  of  the  plaintiff 
would  license  or  authorize  the  conductor  on  such  train  to 
unnecessarily  assault  and  beat  the  plaintiff.  Smith  v. 
Railway  Co.,  48  W.  Va.  70. 

f.  Same — Special  instructions  of  company  as  to  move- 
ment of  trains  —  Acts  of  conductor  when  within 
scope  of  his  duty  and  power. 

The  court  instructs  the  jury  that  the  special  instruction 
offered  in  evidence,  reading  as  follows :  "Agents  and  yard 
masters  will  have  charge  of  and  direct  movements  of  all 
trains  and  trainmen  in  -  — ,  -  — ,  -  -  and  - 
yards,"  does  not  take  away  the  power  and  authority  im- 
plied, possessed  under  the  law  by  the  conductor  of  a 
through  freight  train  to  protect  and  care  for  his  own  train, 
while  the  same  may  have  been  on  the  main  line  of  the 
railroad;  and  if  the  jury  believe  from  the  evidence  that 
the  said  train  was  running  on  the  main  track,  going  on  its 
regular  run  -  — ,  with  the  conductor  and  the  rest  of  the 
crew  aboard,  after  the  yard  master  had  signalled  the 
conductor  to  leave,  then  such  conductor,  after  his  train 
had  started  and  was  moving  on  the  main  line  on  its 
through  run  (although  it  may  have  been  at  the  time 
within  the  yard  limits  of  the  railroad  company),  had  the 
authority  to  order  a  trespasser  from  his  train ;  and  if  the 
jury  believe  from  the  evidence  that  said  conductor  ordered 
the  plaintiff  ejected  from  his  said  train  under  such  cir- 
cumstances, then  such  conductor  was  acting  in  the  line 
of  his  duty,  and  within  the  scope  of  his  duty,  and  within 
the  scope  of  his  implied  powers,  in  the  absence  of  evi- 
dence conferring  such  authority  upon  some  one  else  then 
on  the  said  train.  Landers  v.  Railroad  Co.,  46  W.  Va. 
499 


CARRIERS. 
D.       EQUIPMENTS. 


a.     Care  required  in  the  construction  of  roads  and  manage- 

ment of  trains. 

The  court  instructs  the  jury  that  a  railroad  company 
is  held  by  the  law  to  the  utmost  care,  not  only  in  the 
management  of  its  trains  and  cars,  but  also  in  the  struct- 
ure, repair  and  care  of  the  track  and  bridges  and  all  other 
necessary  arrangements  necessary  to  the  safety  of  passen- 
gers. Searles  v.  Railroad  Co.,  32  W.  Va.  374. 

E.      CONTRIBUTORY    NEGLIGENCE. 

a.  Obstructions   in  dangerous   proximity   to   railroad 

tracks. 

b.  Places  of  danger  —  Duty  of  passengers  occupying. 

c.  Exposure  by  passengers  to  danger. 

d.  Same  —  In   violation   of   reasonable   regulations   of 

carrier. 

e.  Same  —  Heedless  exposure  to  danger. 

f.  Same  —  When  increased  exposure  does  not  prevent 

recovery  for  injury. 

g.  Same  —  Knowledge  of  carrier  of  danger  to  which 

passenger  exposed. 

h.     Same  —  Care  and  diligence  required  of  carrier. 
i.     Intoxication  of  passenger. 
j.     Restraint  upon  passengers  by  carriers. 
k.     Preponderance  of  evidence  when  contributory  neg- 

ligence relied  on. 
1.     Risks    assumed    by   passenger  —  Unavoidable    acci- 

dents. 

m.     Same  —  Negligence  of  carrier. 
n.     Concurrent  negligence. 
o.     Same  —  Apportionment  of  negligence. 


140  CARRIERS. 

a.  Obstructions    in    dangerous    proximity    to    railroad 

track. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  placed* or  allowed  to  be 
placed  by  its  railroad  track  -  -  in  such  dangerous 
proximity  to  said  track  as  to  prevent  the  passage  of  a 
passenger  car  on  said  track  without  striking  or  scraping 
said  car,  and  in  consequence  thereof  the  plaintiff  was 
injured  as  is  charged  in  the  declaration,  without  fault 
on  his  part  contributing  to  said  injury,  such  act  of  the 
defendant  is  negligence  in  law.  Garrico  v.  Railway  Co., 
39  W.  Va.  92. 

b.  Places  of  danger — Duty  of  passenger  occupying  to 

obey  request  of  carrier. 

The  court  instructs  the  jury  that  it  is  the  duty  of  a 
passenger  unnecessarily  riding  on  the  platform  of  a  car 
in  motion  to  go  into  the  car  when  requested  by  the  con- 
ductor or  others  in  charge  of  the  train,  if  there  be  only 
standing  room  in  the  car,  and  if  the  jury  believe  from 
the  evidence  that  the  plaintiff's  failure  to  obey  such  re- 
quest contributed  to  his  injury,  they  should  find  for  the 
defendant.  Fisher  v.  Railroad  Co.,  42  W.  Va.  195. 

c.  Exposure  by  passenger  to  danger. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff's  arm  was  resting  on  the 
window-sill  of  the  passenger  car,  the  placing  of  his  arm 
there  was  not  negligence  on  the  part  of  the  plaintiff,  pro- 
vided, when  resting  upon  said  sill,  it  did  not  protrude 
beyond  the  window  of  the  car.  Carrico  v.  Railway  Co., 
39  W.  Va.  96. 

d.  Same — When  in  violation  of  reasonable  regulation  of 

carrier. 
The  court  instructs  the  jury  that  a  regulation  of  a  rail- 


CARRIERS.  141 

road  company  which  forbids  passengers  to  stand  upon  the 
platform  while  the  car  is  in  motion  is  a  reasonable  and 
proper  rule ;  and  if  a  passenger,  in  violation  of  such  regu- 
lation, unnecessarily  exposes  himself,  he  does  so  at  his  own 
peril.  Fisher  v.  Railroad  Co.,  42  W.  Va.  193. 

e.  Same — Heedless  exposure  to  danger — Duty  of  carrier. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  plaintiff  was  riding  on  the  platform 
of  the  defendant's  car  in  such  a  state  of  intoxication  as 
to  be  careless  and  heedless  of  the  danger  to  which  he  was 
exposed,  and  the  conductor  was  aware  of  his  position  and 
exposure  to  danger,  it  was  the  duty  of  said  conductor  to 
use  only  ordinary  precautions  for  his  safety,  such  as 
calling  his  attention  to  the  danger  and  the  rules  of  the 
company  forbidding  such  exposure,  but  such  conductor 
would  not  be  required  to  exercise  or  impose  any  restraint 
upon  the  plaintiff.  FisJier  v.  Railroad  Co.,  42  W.  Va.  194. 

f.  Same — When  increased  exposure  by  passenger  does 

not  prevent  recovery  for  injury — Burden  of  proof. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  plaintiff's  arm  protruded  beyond  the 
window  of  the  car,  yet  the  plaintiff  can  recover  if  the  jury 
further  believe  from  the  evidence  that  the  injury  to  him 
would  have  occurred  even  if  his  arm  had  not  protruded 
beyond  the  window  of  the  car;  and  the  burden  of  prov- 
ing that  the  accident  would  have  happened  even  if  his  arm 
had  not  protruded  as  aforesaid  devolves  upon  the  plain- 
tiff. Carrico  v.  Railway  Co.,  39  W.  Va.  96. 

g.  Same — Knowledge  of  carrier  of  danger  to  which  pass- 

enger exposed — When  negligence  of  passenger  does 
not  relieve  carrier  from  liability. 
The  court  instructs  the  jury  that  if  they  believe  from 


142  CARRIERS. 

the  evidence  that  the  plaintiff  was  guilty  of  negligence, 
and  that  that  negligence  may  •  have  contributed  to  the 
injury,  yet,  if  the  jury  further  believe  from  the  evidence 
that  the  negligent  position  of  said  plaintiff  was  known 
to  the  defendant  or  its  servants,  and  that  with  such  knowl- 
edge the  injury  to  the  plaintiff  could  then  have  been 
prevented  by  the  use  of  care  and  diligence  on  the  part  of 
said  defendant  or  its  servants,  then  the  plaintiff's  negli- 
gence will  not  excuse  or  relieve  the  defendant  from  lia- 
bility. Carrico  v.  Railway  Co.,  39  W.  Va.  99. 

h.     Same — Care  and  diligence  required  of  carrier. 

The  court  instructs  the  jury  that  though  the  plaintiff 
may  have  been  guilty  of  negligence,  and  although  that 
negligence  may  have  contributed  to  the  injury,  yet  if  the 
defendant  could,  by  the  exercise  of  ordinary  care  and  dili- 
gence, have  avoided  the  injury,  the  plaintiff's  negligence 
will  not  excuse  or  relieve  the  defendant  from  liability. 
Carrico  v.  Railway  Co.,  35  W.  Va.  400. 

i.    Intoxication  of  passenger. 

The  court  instructs  the  jury  that  in  determining  the 
question  of  whether  the  plaintiff  was  guilty  of  contribu- 
tory negligence,  they  may  take  into  consideration  the 
condition  of  the  plaintiff  at  the  time — that  is,  if  he  were 
intoxicated  at  the  time  of  the  injury,  or  partly  so,  they 
may  take  this  fact  into  account  in  determining  whether 
he  was  guilty  of  contributory  negligence.  Fisher  v.  Rail- 
road Co.,  42  W.  Va.  194. 

j.    Restraint  upon  passengers  by  carriers. 

The  court  instructs  the  jury  that  a  railroad  company 
has  no  right  or  authority  to  impose  upon  its  passengers 
any  restraint  even  to  enforce  its  reasonable  rules.  Fisher 
v.  Railroad  Co.,  42  W.  Va.  194. 


CARRIERS.  143 

k.    Preponderance  of  evidence  when  contributory  negli- 
gence relied  on. 

The  court  instructs  the  jury  that  in  order  for  the  plain- 
tiff to  recover,  it  is  only  necessary  that  he  make  out  his 
case  by  a  preponderance  of  the  evidence,  and  if  the  de- 
fendant relies  upon  the  contributory  negligence  of  the 
plaintiff  to  defeat  him,  said  contributory  negligence  must 
be  proved  by  a  preponderance  of  all  the  evidence  in  the 
case,  as  well  that  of  the  plaintiff  as  that  of  the  defendant. 
Carrico  v.  Railway  Co.,  39  W.  Va  102. 

1.  Risks  assumed  by  passenger — Unavoidable  accidents. 
The  court  instructs  the  jury  that  the  plaintiff,  as  a 
passenger  on  the  defendant's  car,  is  presumed  to  have 
taken  upon  himself  all  the  risk  necessarily  incident  to 
that  mode  of  traveling;  and  if  the  jury  believe  from  the 
evidence  that,  without  the  fault  of  the  defendant,  but  by 
inevitable  accident,  plaintiff  was  injured,  they  should 
find  for  the  defendant.  Fisher  v.  Railroad  Co.,  42  W.  Va. 
193. 

m.    Same — Negligence  of  carrier. 

The  court  instructs  the  jury  that  a  passenger  upon  a 
railroad  train  takes  all  the  risk  attending  that  mode  of 
travel,  except  such  as  may  be  caused  or  incurred  by  the 
negligence  of  the  railroad  company  or  its  servants,  and 
unless  such  negligence  by  the  defendant  is  shown  by  the 
evidence,  the  jury  should  find  for  the  defendant.  Fisher 
v.  Railroad  Co.,  42  W.  Va.  193. 

n.     Concurrent  negligence. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  both  the  plaintiff  and  defendant  were 
guilty  of  negligence,  that  such  negligence  of  both  was 
concurrent  or  running  together,  and  co-operated  to  pro- 


144  CIVIL  DAMAGE  ACT. 

duce  the  injury  complained  of,  they  should  find  for  the 
defendant.    Fisher  v.  Railroad  Co.,  42  W.  Va.  193. 

o.     Same — Apportionment  of  negligence. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  injury  in  the  declaration  mentionod 
was  the  result  of  the  concurrent  negligence  of  both  the 
plaintiff  and  defendant,  the  jury  has  no  right  to  apportion 
the  fault,  and  to  find  a  verdict  for  the  plaintiff  upon 
that  ground,  but  in  such  case  they  should  find  for  the 
defendant.  Fisher  v.  Railroad  Co.,  42  W.  Va.  194. 


CHAPTER  15. 
CIVIL  DAMAGE  ACT. 

a.  Sale  of  intoxicating  liquors  to  minors — Who  may 

maintain  suit. 

b.  Same — Unlawful  sales  to  husband. 

c.  Same — Injury  in  person  or  in  means  of  support. 

d.  Same — Knowledge  of  liquor  dealer  as  to  minority. 

a.     Sale  of  intoxicating  liquor  to  minor — Right  of  mother 

injured  in  support,  to  sue  for. 

The  court  instructs  the  jury  that  if  the  mother  of  a 
minor  son  has  been  injured  in  her  means  of  support  by  the 
intoxication  of  such  son,  caused  in  whole  or  in  part  by 
intoxicating  liquors  unlawfully  sold  to  him  by  a  liquor 
dealer,  the  mother  has  a  right  of  action  against  the  per- 
son making  such  sale,  although  at  the  time  of  such  in- 
jury she  may  be  living  with  a  husband,  on  whom  she  de- 
pends in  part  for  support.  McMaster  v.  Dyer,  44  W.  Va. 
645. 


CIVIL  DAMAGE  ACT.  145 

b.  Same — Unlawful  sales  to  husband. 

.  The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  was  injured  in  her  means 
of  support  in  consequence  of  the  intoxication,  habitual 
or  otherwise,  of  her  husband,  caused  in  whole  or  in  part 
by  the  unlawful  selling  or  giving  intoxicating  liquors  to 
him  by  -  — ,  they  shall  find  for  the  plaintiff  for  all 
damages  sustained  and  for  exemplary  damages.  Mayer 
v.  Frobc,  40  W.  Va.  246-258. 

c.  Same — Injury  in  person  or  in  means  of  support — Pre- 

ponderance of  evidence. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  preponderance  of  the  evidence  that  the  defendant  has 
injured  the  plaintiff,  in  person  or  in  means  of  support, 
in  manner  and  form  as  alleged  in  the  declaration,  by  un- 
lawfully selling  to  her  minor  son,  -  — ,  intoxicating 
liquors,  as  alleged,  and  that  his  intoxication  was  caused, 
in  whole  or  in  part,  by  intoxicating  liquors  unlawfully 
sold  to  him  by  the  defendant,  as  in  the  declaration  alleged, 
and  that  such  injury  was  the  result  of  such  intoxication, 
the  jury  should  find  for  the  plaintiff.  McMaster  v.  Dyer, 
44  W.  Va.  645. 

d.  Same — Knowledge  of  liquor  dealer  as  to  minority. 
The  court  instructs  the  jury  that  a  sale  of  intoxicat- 
ing liquors  by  a  liquor  dealer  to  a  minor  is  unlawful,  if 
at  the  time  of  such  sale  the  liquor  dealer  knows,  or  has 
reason  to  believe,  that  the  purchaser  is  a  minor.     Mc- 
Master v.  Dyer,  44  W.  Va.  646. 


14fi  CONDEMNATION  PROCEEDINGS. 

CHAPTER  16. 
CONDEMNATION  PROCEEDINGS. 

1.  MAIN  LINES  OF  RAILROADS. 

2.  LATERAL  LINES  OP  RAILROADS. 

3.  FOR  PURPOSES  OF  RAILROAD  BRIDGES. 

1.   MAIN  LINES  OF  RAILROADS. 

a.  Necessity   for   taking   property — How   determined. 

b.  Discretion  as  to  location — How  controlled. 

c.  Permanent  injury  to  real  property. 

d.  Title   and    possession   of   property — Necessity    for 

proving. 

e.  Future  or  prospective  injury. 

f.  Land    condemned — Location — Market    value — Com- 

pensation. 

g.  Same — What  not  to  be  considered, 
h.     How  damages  estimated. 

i.     Burden  of  proof — Preponderance  of  evidence. 

a.     Necessity  for  taking  property — How  determined. 

The  court  instructs  the  jury  that  while  it  is  incum- 
bent on  the  petitioner  to  show  by  a  preponderance  of  the 
evidence  that  a  necessity  exists  for  the  taking  of  the 
property  described  in  the  petition,  such  necessity  is  not 
to  be  regarded  and  treated  as  an  imperative,  but  a  rea- 
sonable one,  looking  to  the  proper  discharge  by  the 
petitioner  of  its  duties  to  the  public;  and  if  the  jury  be- 
lieve from  the  evidence  that  such  a  necessity  exists,  taking 
into  consideration  the  present,  and  also  the  prospective 
needs  of  the  petitioner,  within  a  reasonable  time,  and  that 
it  has  not,  in  this  instance,  unreasonably  exercised  the 


CONDEMNATION  PROCEEDINGS.  147 

discretion  it  possesses  in  locating  its  tracks,  buildings, 
etc.,  then  the  verdict  should  be  in  its  favor  upon  the  issue 
presented  by  the  plea  filed  herein.  (Note. 

The  —  -  plea  referred  to  alleged  that  the  land  sought  to 
be  condemned  was  not  necessary  for  the  purposes  sought) . 
Railroad  Co.  v.  Oil  Co.,  35  W.  Va.  214. 

b.  Discretion  as  to  location — How  Controlled. 

The  court  instructs  the  jury  that  railroad  companies 
possess  a  large  discretion  as  to  the  location  of  their  tracks 
and  buildings;  and  this  discretion  is  not  to  be  controlled 
if  it  has  not  been  exercised  unreasonably.  And  in  this 
case,  even  if  the  jury  should  believe  that  lands  other  than 
those  in  question  might  or  could  have  been  found  and  ac- 
quired suitable  for  the  petitioner's  purpose,  that  fact 
would  constitute  no  defense  or  objection  to  the  present 
claim.  Railroad  Co.  v.  Oil  Co.,  35  W.  Va.  214. 

c.  Permanent  injury  to  real  property. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  property  of  the  plaintiff  has  been 
permanently  injured  and  damaged,  and  its  value  de- 
preciated by  the  laying  and  construction  of  the  railroad 
track  in  question,  and  that  the  defendant  laid  or  had  it 
laid  and  constructed  by  its  agents  and  employes,  then  the 
plaintiff  may  recover  in  this  action.  Fox  v.  Railroad  Co., 
34  W.  Va.  476. 

d.  Same — Title   and  possession   of  property — Necessity 

for  proving. 

The  court  instructs  the  jury  that  to  justify  the  plaintiff 
to  recover  damages  for  the  laying  of  the  track  in  ques- 
tion, it  is  his  duty  to  allege  both  his  title  to  and  possession 
of  the  premises,  by  himself  or  his  tenant,  and  also  that  his 
property  had  been  permanently  injured  and  damaged,  and 


148  CONDEMNATION  PROCEEDINGS. 

rendered  of  less  value  by  reason  of  the  existence  and 
operation  of  the  said  railroad,  and  also  to  prove  his  right 
to  recover  upon  such  allegations  by  a  preponderance  of 
evidence,  and  failing  to  do  so,  the  jury  must  find  for  the 
defendant.  Fox  v.  Railroad  Co.,  34  W.  Va.  478. 

e.  Future  or  prospective  injury. 

The  court  instructs  the  jury  that  in  determining  this 
case  the  jury  are  not  to  take  info  consideration  any  fu- 
ture or  prospective  injury  or  damage  that  the  plaintiff 
might  sustain  by  reason  of  the  railroad  track  or  its  use 
and  operation  to  his  said  property,  but  they  may  take  into 
consideration  any  permanent  damages  to,  and  deprecia- 
tion of  the  value  of  his  said  property,  by  the  laying  and 
construction  of  said  track.  Fox  \.  Railroad  Go.,  34  W. 
Va.  478. 

f.  Land  condemned — Location — Market  value — Compen- 

sation. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence,  facts  and  circumstances  before  them  in  this 
proceeding,  that  the  land  mentioned  and  described  in  the 
notice,  application  and  commissioners'  report  herein 
sought  to  be  taken  in  this  proceeding,  is  within  the  cor- 
porate limits  of  the  town  of  -  — ,  and  at  the  time  of 
the  proposed  taking  thereof  by  the  applicant,  had  a  market 
value,  then  such  market  value  together  with  the  view  of 
the  premises  would  be  the  proper  measure  of  compensa- 
tion to  be  allowed  by  the  jury  to  the  defendant  for  the 
same.  Railway  Co.  v.  Buskirk,  57  W.  Va.  417. 

g.  Same — What  not  to  be  considered. 

The  court  instructs  the  jury  that  in  ascertaining  what 
would  be  a  just  compensation  to  the  defendant  for  the 
land  proposed  to  be  taken  by  the  applicant,  as  set  forth 


CONDEMNATION  PROCEEDINGS.  149 

in  the  notice,  application  and  commissioners'  report  in 
this  proceeding,  such  general  and  intangible  benefits  as 
have  accrued  to  this  property  in  common  with  all  other 
property  in  the  community  where  it  is  situate,  by  reason 
of  the  proposed  building  of  the  —  -  railroad  of  its  road 
into  said  community,  can  not  be  deducted  from  its  fair 
market  value,  if  they  find  it  had  such  value,  at  the  time 
the  same  was  proposed  to  be  taken  by  said  railroad  com- 
pany. Railway  Co.  v.  Buskirk,  57  W.  Va.  417. 

h.    How  damages  estimated. 

The  court  instructs  the  jury  that  in  ascertaining  the 
value  of  the  land  proposed  to  be  taken  by  the  -  -  rail- 
road company  they  may  properly  enquire  into  its  value  by 
reason  of  its  being  -  — ,  but  in  considering  the  market 
value  of  the  land  they  must  not  consider  the  uses  to  which 
the  -  -  railroad  company  had  put  this  ground  in 
constructing 'its  railroad.  R.  R.  Co.  v.  Shepherd,  26  W. 
Va.  680. 

i.    Burden  of  proof — Preponderance  of  evidence. 

The  court  instructs  the  jury  that  the  burden  of  proof 
is  on  the  plaintiff  to  make  out  his  case  by  a  preponderance 
of  evidence  as  delivered  to  the  jury  in  the  presence  of  the 
court  and  the  situation  of  the  property  in  question  as 
viewed  by  the  jury  under  the  order  of  the  court,  and  it 
devolves  on  the  plaintiff  by  like  preponderance  of  evidence 
to  satisfy  the  jury  that  the  defendant  laid  the  said  track. 
Fox  v.  Railroad  Co.,  34  W.  Va.  477. 

2.      BRANCH  OR  LATERAL  LINES  OP  RAILROADS. 

a.  Eight    to  construct  lateral  lines — Abandonment  of 

work  on  main  line. 

b.  Same — Construction  of  portion  of  main  line. 


150  CONDEMNATION  PROCEEDINGS. 

c.  Same. 

d.  "Lateral  Line"  defined. 

a.  Right  to  construct  lateral  line — Abandonment  of  work 

on  main  line. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  petitioner  built  and  constructed  its 
main  line  of  railroad  as  designated  and  contemplated  by 
its  charter  from  the  —  -  boundary  of  the  city  of  -  — , 
to  a  point  on  the  -  — ,  it  had  and  has  the  right  to  con- 
struct a  branch  or  lateral  line  of  railroad  connecting  with 
the  main  line  at  such  point;  and  this,  although  the  jury 
may  further  believe  from  the  evidence  that  it  ceased  fur- 
ther work  on  the  main  line,  and  abandoned  all  intention 
of  building  and  constructing  further  in  an  -  -  direc- 
tion, or  towards  the  -  -  state  line.  Railroad  Co.  v.  Oil 
Co.,  35  W.  Va.  213. 

b.  Same — Construction  of  portion  of  main  line. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  any  substantial  portion  of  the  main  line 
of  the  railroad  contemplated  by  its  charter  has  been  built 
or  constructed  by  the  petitioner,  their  verdict  should  be  in 
its  favor  upon  the  issue  raised  by  the  plea.  (Note.  The 
-  plea  alleged  the  abandonment  of  the  main  line.) 
Railroad  Co.  v.  Oil  Co.,  35  W.  Va.  214. 

c.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  so  much  of  the  petitioner's  railroad  as 
has  been  constructed  from  -  -  to  -  — ,  is  a  portion 
of  the  main  line  of  such  railroad,  as  designated  and  con- 
templated by  the  charter  of  the  -  -  railroad  com- 
pany, then  their  verdict  should  be  for  the  petitioner,  on 
the  issue  presented  by  the  -  -  plea  filed  by  the  defend- 
ant. Railroad  Co.  v.  Oil  Co.,  35  W.  Va.  214. 


CONDEMNATION  PROCEEDINGS.  151 

• 

d.     ' '  Lateral  Line ' '  defined. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  line  of  the  railroad  constructed 
from  -  -  to  -  — ,  is  a  portion  of  the  main  line  of  pe- 
titioner's railroad,  as  contemplated  by  its  charter,  they 
are  instructed  that  the  length  of  the  line  connecting  with 
such  main  line  at  -  -  and  running  thence —  — ,is  not 
decisive  of  the  question  whether  such  second  line  is  or  is 
not  a  branch  or  lateral  line.  Neither  length  nor  direc- 
tion enter  into  the  definition  of  a  'branch  or  lateral'  rail- 
road. The  only  limit  in  this  state  as  to  length  is  the 
statutory  one  of  -  -  miles.  Railroad  Co.  v.  Oil  Co., 
35  W.  Ya.  213. 

3.      FOR  PURPOSES  OP  RAILROAD   BRIDGES. 

a.    When  all  the  property  sought  to  be  taken  is  not  re- 
quired. 

The  court  instructs  the  jury  that  in  order  that  the  de- 
fendant may  retain  a  portion  of  the  property  sought  to 
be  taken  in  this  proceeding,  it  is  not  requisite  that  such 
part  should  be  in  actual  use  by  the  defendant,  if  it  is 
necessary  to  the  proper  maintaining  or  securing  of  its 
bridge.  If,  therefore,  the  jury  find  from  the  evidence  that  a 
portion  thereof,  ten  feet  or  less  in  width,  on  all  sides  of 
the  defendant's  guy-pier,  is  necessary  to  the  proper  main- 
taining of  such  guy-pier,  and  of  the  defendant's  bridge, 
then,  as  to  such  portion,  they  shall  find  for  the  defendant, 
although  the  whole  of  said  portion  may  not  be  occupied  by 
the  defendant's  riprap.  Bridge  Co.  \.  Bridge  Co.,  34  W. 
Va.  188. 


152  CONSPIRACY. 

CHAPTER  17. 
CONSPIRACY. 

a.  Conspiracy  defined. 

b.  What  necessary  to  constitute  the  offense. 

c.  Acts  done  in  pursuance  of. 

d.  Same — Burden  of  proof. 

e.  Person  charged  with,  may  be  convicted  of  assault 

and  battery. 

a.  Conspiracy  defined. 

The  court  instructs  the  jury  that  a  conspiracy  is  a  cor- 
rupt agreement  previously  entered  into  between  two  or 
more  persons  to  do  by  concerted  action  something  unlaw- 
ful or  to  accomplish  some  criminal  or  unlawful  purpose  or 
to  accomplish  some  purpose  not  unlawful  in  itself  but  by 
unlawful  means.  State  v.  Bingham.  42  W.  Va.  234. 

b.  What  necessary  to  constitute  the  offense. 

The  court  instructs  the  jury  that  before  they  can  find 
the  prisoner  guilty  of  the  offense  charged  in  the  indict- 
ment in  this  case,  that  they  must  be  satisfied  beyond  all 
reasonable  doubt  that  the  said  -  -  conspired  and 
combined  with  -  -  and  -  (who  are  indicted 
jointly  with  him),  or  either  of  them,  to  inflict  punishment 
and  bodily  injury  on  the  said  -  — ,  and  that  in  pur- 
suance of  said  conspiracy  and  combination  the  said 
-  did  inflict  punishment  and  bodily  injury  upon  the 
body  of  said  -  — ,  and  that  unless  you  shall  believe 
from  all  the  evidence  beyond  all  reasonable  doubt  that 
such  conspiracy  and  combination  existed  between  the  said 
— ,  -  -  and  -  — ,  or  any  two  of  them, 
being  one,  to  inflict  such  punishment  and  bodily 


CONSPIRACY.  153 

injury,  you  should  find  the  prisoner  -       — ,  not  guilty. 
State  v.  Bingham,  42  W.  Va.  234. 

c.  Same — Acts  done  in  pursuance  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  prisoner,  —  — ,  in  pursuance  of  an 
understanding  and  combination  between  himself  and 

-  and  -       — ,  or  either  of  them,  "assaulted  —      -  in 
the  night  time,  on  the  street,  in  the  city  of  -       — ,  in  this 
county,  for  the  purpose  of  whipping  him  or  doing  him 
an  injury,  and  did  then  and  there  inflict  any  punishment 
or  bodily  injury  upon  said  -       — ,  and  the  said  - 

and  -  — ,  or  either  of  them,  were  present  when  the  as- 
sault was  so  made  and  injury  inflicted  by  said  -  — ,  and 
that  they,  or  either  of  them,  aided  or  abetted  said  - 
in  said  assault,  either  by  word  or  action,  then  they  must 
find  the  prisoner  guilty  as  charged  in  the  indictment. 
State  v.  Bingham,  42  W.  Va.  235. 

d.  Same — Burden  of  proof. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  prisoner  assaulted  and  beat  -  — , 
and  inflicted  upon  him  injury,  in  this  county,  on  or  about 

the  night  of  -   ,  -       — ,  and  that  -      —  and  - 

were  present  when  said  assault  was  so  made  by  said 

-  upon  said  -       — ,  and  that  they  aided  and  abetted 
said  -        -  in  said  assault  and  battery,  either  by  prevent- 
ing others  from  interfering  to  prevent  or  stop  said  assault, 
or   by    assisting   in    administering   punishment   to    said 

-  themselves,  then  they  must  presume  that  said  as- 
sault was  made  and  such  injury  inflicted  in  pursuance  of 
a  combination  and  conspiracy  between  said  prisoner  and 

-  and  -       — ;  and  the  burden  of  proving  that  such 
combination  and  conspiracy  did  not  exist,  and  that  such 
assault  was  not  made  and  such  injury  inflicted  in  pursu- 


154  CONTRACTS.  t 

ance  thereof,  is  upon  the  prisoner,  and  unless  he  shows  by 
clc;ir  and  satisfactory  proof  that  such  combination  and 
conspiracy  did  not  exist,  or  it  appears  from  the  whole 
evidence  and  circumstances  of  the  case,  then  they  must 
find  the  prisoner  guilty.  State  v.  B'nujhntn,  42  W.  Va. 
235. 

e.     Person  charged  with  conspiracy  may  be  convicted  of 

assault  and  battery. 

The  court  instructs  the  jury  that  although  they  may 
find  the  prisoner,  —  — ,  not  guilty  of  the  offense  charged 
in  said  indictment,  if  they  shall  not  be  satisfied  or  have 
a  reasonable  doubt  as  to  the  existence  of  a  conspiracy  and 
combination  to  do  the  acts  charged  therein,  yet  you  may 
find  them  guilty  of  assault  and  battery  if  you  think  that 
the  evidence  in  the  case  shall  warrant  such  verdict.  State 
v.  Bingham,  42  W.  Va.  234. 


CHAPTER  18. 
CONTRACTS. 

1.  WRITTEN     CONTRACTS INTERPRETATION    OF ACQUI- 

ESCENCE IN. 

2.  MODIFICATION  OF  CONTRACTS. 

3.  SEPARATE  AND  DISTINCT  CONTRACTS. 

1.      WRITTEN     CONTRACTS  —  INTERPRETATION    OF  —  ACQUI- 
ESCENCE IN. 

a.  Written  agreement  exclusive  evidence  of  contract. 

b.  Contracts  by  correspondence  construed. 

c.  Same — Acceptance  of — Modification  of — Agency. 

d.  Same — Dates  from  acceptance  of. 


CONTRACTS.  155 

e.  What  the  parties  to  contract  must  account  for. 

f.  Accounts  as  evidence — Effect  of — When  complete. 

g.  Statements  of  accounts — Opportunity  to  discover 

errors. 

h.     Same — Burden  of  proof, 
i.     Additional  claims  procured  through  third  parties. 

j.     Contract  effecting  compromise — Acceptance  of. 

k.     Same — New  contract — Breach  of. 

1.     Contract  of  employment — Interpretation  of  and  ac- 
quiescence in. 

m.     Same — When  acquiescence  inferred. 

n.     Contract  releasing  damages — Understanding  of. 

o.     Building   and    construction    contracts  —  Contracts 
with  penalties  attached. 

p.     Same. 

q.     Same — Burden  of  proof. 

r.     Delay  in  obtaining  material — Burden  of  proof. 

s.     Same — Plans  of  manufactured  material. 

t.     Same — As  to  when  delayed  material  needed. 

u.     Occupying  intervals  with  other  parts  of  work. 

v.     Contract  for  sawing  timber — Delays  in. 

w.     Same — Failure  to  procure  help — Duty  to  procure 
help. 

x.     Commissions  for  selling  lands — Terms  agreed  upon. 

y.     Same — What  necessary  to  support  contract. 

z.     Same — Failure    to    complete    contract — Party    re- 
sponsible for. 

zl.     Revocation  of  contracts — Bona  fide  purchasers. 
z2.     Commissions  on  goods  not  sold  and  returned. 
z3.     Ambiguous  contracts — Intention  of  parties. 

a.    Written  agreement  exclusive  evidence  of  contract. 

The  court  instructs  the  jury  that  when  parties  have 
made  a  written  agreement,  the  writing  is  regarded  as  the 
exclusive  evidence  of  the  contract,  and  all  oral  negotia- 


150  CONTRACTS. 

tions  and  stipulations  preceding  or  accompanying  the 
execution  of  the  written  agreement  are  merged  in  it,  and 
are  not  admissible  in  evidence,  and  all  such  oral  negotia- 
tions and  stipulations  should  not  be  considered  by  you  to 
contradict  or  vary  the  written  policy  in  this  case.  Man- 
pin  v.  Insurance  Co.,  53  W.  Va.  566. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that,  on  the  day  of  -  — ,  18 — ,  plaintiff 
and  defendant  entered  upon  a  negotiation  for  the  sale  and 
assignment  of  the  bond  from  A.  to  B.,  offered  in  evidence 
in  this  case,  and  that  the  result  of  said  negotiation  was 
the  written  agreement  upon  the  back  of  said  bond,  signed 
by  the  plaintiff  and  defendant,  then  the  legal  effect  of 
said  written  agreement  is  that  if  said  bond  was  due  and 
unpaid  at  the  time  of  said  agreement,  the  plaintiff  took 
upon  himself  the  risk  of  collecting  said  bond  and  the  terms 
of  said  written  agreement  cannot  be  changed  or  altered 
by  parol  evidence.  Houston  v.  McNeer,  40  W.  Ya.  368. 

b.  Contract  by  correspondence  construed. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  made  a  contract  with  the 
defendant,  and  that  such  contract  is  expressed  in  letters, 
or  in  several  writings,  and  a  printed  circular,  and  is  the 
only  contract  between  them,  then  the  contract  between 
the  plaintiff  and  the  defendant  is  a  contract  in  writing, 
and  the  parties  are  bound  by  the  terms  of  the  written 
contract.  Shreicsbury  v.  Tufts,  41  W.  Va.  216. 

c.  Same — Acceptance — Modification — Agency. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  became  an  agent  for  the 
defendant  under  a  contract ;  and  that  the  only  contract  be- 
tween the  plaintiff  and  defendant  is  expressed  in  letters 


CONTRACTS.  157 

from  the  defendant  to  the  plaintiff  bearing  date  on  the 
—  and  —  —  days  of  -  — ,  enclosing  a  printed  cir- 
cular mentioned  therein,  and  the  letters  from  plaintiff  to 
defendant  bearing  date  —  —  and  -  — ,  of  -  — ,  and 
if  the  jury  further  believe  from  the  evidence  that  the 
plaintiff,  by  a  letter  dated  the  -  -  day  of  -  — ,  ac- 
cepted the  terms  proposed  to  him  by  the  defendant,  as 
shown  by  the  letters  and  circulars  as  aforesaid,  without 
anything  other  or  further  in  relation  thereto  between 
them,  then  such  letters  and  circulars  constitute  the  con- 
tract between  the  plaintiff  and  the  defendant;  and  the 
parties  are  bound  by  the  terms  thereof,  except  so  far 
as  the  same  may  have  been  subsequently  modified  by  mu- 
tual agreement  of  the  plaintiff  and  of  the  defendant,  if, 
from  the  evidence,  the  jury  believe  that  any  such  modifi- 
cation was  subsequently  made.  Shrewsbury  v.  Tufts,  41 
W.  Va.  217. 

d.  Same — Dates  from  acceptance  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  contract  between  the  plaintiff  and 
the  defendant  consisted  of  the  letters  and  the  circular 
mentioned,  then  such  contract  was  a  contract  in  writing, 
and  it  bears  date  from  the  acceptance  by  the  plaintiff  of 
the  terms  proposed  by  the  defendant,  in  the  year  -  — . 
Shrewsbury  v.  Tufts,  41  W.  Va.  217. 

e.  What  parties  to  contract  must  account  for. 

The  court  instructs  the  jury  that  the  defendant  must 
account  to  the  plaintiff  for  all  compensation  and  amounts 
of  money  which  the  defendant  admits  or  shows  by  his 
accounts  in  evidence  to  be  properly  credited  to  the  plain- 
tiff, and  the  defendant  is  entitled  to  be  credited  with  such' 
amounts  as  are  proper  to  be  deducted  under  the  contract 


158  CONTRACTS. 

and  arrangements  between  the  plaintiff  and  the  defend- 
ant.   Shrewsbury  v.  Tufts,  41  W.  Va.  217. 

f.  Account  as  evidence — Effect  of. 

The  court  instructs  the  jury  that  the  counsel  for  the 
plaintiff  has  agreed  that  the  accounts  offered  by  the  de- 
fendant in  evidence,  and  taken  from  his  books,  shall  have 
the  same  effect  as  though  the  books  themselves  had  been 
duly  proved  and  produced  in  court;  but,  unless  the  jury 
believe  from  the  evidence  that  the  books  from  which  said 
accounts  were  taken  were  books  of  original  entry,  then 
the  same  are  not  evidence  in  favor  of  the  defendant  on 
this  trial.  Shrewsbury  v.  Tufts,  41  W.  Va.  217. 

g.  Statement  of  accounts — Opportunity  to  discover  er- 

rors. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  there  was  an  account  stated  between 
the  parties,  then  the  effect  of  such  account  stated  is  to 
cast  the  burden  of  proof  upon  the  party  complaining  to 
show  fraud,  error,  or  mistake,  and  after  a  reasonable 
time  an  account  rendered  and  not  objected  to,  becomes 
admitted  as  correct;  and  if  you  believe  from  the  evidence 
that  the  defendant  rendered  the  plaintiff  a  statement  of  his 
account  with  the  defendant  at,  or  about  the  close  of  each 
year,  during  the  time  the  plaintiff  was  in  the  defendant's 
employ,  and  afterwards,  and  that  the  plaintiff  had  op- 
portunity, by  the  exercise  of  reasonable  care  and  diligence, 
to  discover  any  alleged  error  in  the  same,  then,  as  to  all 
the  items  of  alleged  error  in  such  accounts  stated,  and 
not  within  a  reasonable  time  thereafter  specifically  called 
to  the  attention  of  the  defendant  by  the  plaintiff,  he  is 
concluded  and  estopped,  and,  as  to  all  such  items  charged 
in  the  plaintiff's  account,  you  must  find  for  the  defendant. 
Shrewsbury  v.  Tufts.  41  W.  Va.  218. 


CONTRACTS.  159 

h.    Same — Burden  of  proof. 

The  court  instructs  the  jury  that  the  burden  of  proof  is 
on  the  plaintiff  to  make  out  his  case  by  a  preponderance 
of  the  evidence.  In  this  case  the  plaintiff's  claim,  accord- 
ing to  his  bill  of  particulars,  is  for  commissions  alleged 
to  have  been  retained  improperly,  and  not  paid  to  him, 
as  shown  by  statements  of  account  rendered  and  filed  with 
said  bill  of  particulars;  and  the  jury  are  instructed  that 
the  burden  is  on  the  plaintiff  to  show,  by  a  preponderance 
of  the  evidence,  that  the  items  referred  to  in  such  state- 
ments of  accounts,  and  charged  in  his  bill  of  particulars, 
are  not  lawful  charges  against  the  plaintiff;  otherwise  he 
is  not  entitled  to  recover  in  this  action,  and  you  must  find 
for  the  defendant.  Shrewsbury  v.  Tufts,  41  W.  Va.  218. 

i.    Additional  claims  procured  through  efforts  of  third 

parties. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  claims  upon  which  compensation  is 
sought  to  be  recovered  in  this  action,  were  procured  for 
the  defendant  by  the  plaintiff  under  the  contract  between 
the  plaintiff  and  defendant,  and  the  defendant  and 
claimants,  which  are  in  evidence  in  this  cause,  then  the 
plaintiff  is  entitled  to  recover  his  proper  compensation 
upon  the  amounts  so  recovered  by  the  defendant  upon 
such  items  of  account  as  were  placed  in  the  hands  of  the 
defendant  by  the  plaintiff,  as  aforesaid,  even  although  they 
shall  further  find  from  the  evidence  that  after  such  pro- 
curement there  were  other  items  added  to  the  said  claims 
through  the  efforts  or  by  the  influence  of  persons  other 
than  the  plaintiff.  Logie  v.  Black,  24  W.  Va.  12. 

j.     Contract  effecting  compromise — Acceptance  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  parties  to  this  action  compromised 


160  CONTRACTS. 

their  differences  as  set  forth  in  plaintiff's  declaration,  and 
that  the  writing  of  -  — ,  -  — ,  marked  exhibit  -  — , 
was  signed  by  the  plaintiff  after  being  prepared  and  writ- 
ten by  the  defendant's  agent  and  that  said  writing  em- 
bodied the  actual  terms  of  such  compromise  and  was 
accepted  and  acted  upon  by  defendant,  then  the  defendant 
is  bound  by  the  provisions  of  said  compromise.  Rhoades 
v.  Railway  Co.,  49  W.  Va.  501. 

k.    Same — New  Contract — Breach  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  writing  of  May,  18 — ,  marked  exhibit 
— ,  purporting  to  be  signed  by  plaintiff,  was  in  fact 
signed  by  him  and  the  stipulations  and  conditions  therein 
contained  were  different  from  the  propositions  made  in 
writing  by  him  on  April.  18 — ,  exhibit  No.  -  — ,  the  jury 
should  take  the  last  writing  of  May,  18 — ,  as  embodying 
the  terms  upon  which  the  parties  finally  agreed  to  compro- 
mise; and  if  the  jury  further  believe  from  the  evidence 
that  the  defendant  had  given  the  plaintiff  work,  as  it  had 
agreed  to  do  and  the  plaintiff  failed  to  work  to  the  satis- 
faction of  his  foreman  or  superintendent  as  provided  in 
said  agreement  then  the  defendant  had  the  right  to  dis- 
charge the  plaintiff,  and  it  would  not  be  liable  for  any 
damages  in  this  suit.  Rhoades  v.  Railway  Co.,  49  W.  Va. 
501. 

1.     Contracts   of  employment— Intepretation  of  and  ac- 
quiescence in. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that,  after  the  contract  of  employment  was 
entered  into  between  the  plaintiff  and  defendant,  defend- 
ant so  interpreted  the  same  as  entitled  him  to  charge 
against  the  plaintiff  the  cost  and  expenses  of  collecting 
the  cash  payments  on  goods  sold  by  the  plaintiff,  includ- 


CONTRACTS.  161 

ing  the  amounts  retained  by  attorneys  for  collections 
made,  and  that  plaintiff  had  notice  thereof,  by  the  state- 
ments of  his  accounts  or  otherwise,  and  did  not,  within  a 
reasonable  time  after  such  notice  was  first  given  to  him, 
object  to  such  interpretation  by  the  defendant,  but,  by 
silence,  acquiesced  therein,  and  afterwards  continued  to 
act  under  such  contract  and  to  take  the  benefits  thereof, 
then  the  plaintiff  was  estopped  and  concluded  from 
placing  a  different  construction  on  said  contract, 
no  matter  if  he  did  afterwards,  and  later  on,  make 
objection  to  such  interpretation  by  the  defendant. 
Shrewsbury  v.  Tufts,  41  W.  Va.  220. 

m.     Same — Acquiescence  inferred. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  received,  from  time  to  time, 
from  the  defendant,  statements  of  his  account  with  the 
defendant,  and  was  thereby  afforded  the  opportunity  to 
see  the  items  in  his  bill  of  particulars  mentioned,  charged 
against  him,  and  remained  silent,  and  did  not  object  to 
the  charge  of  such  items  against  him  within  a  reasonable 
time  after  each  of  such  statements  were  so  rendered,  then 
the  defendant  had  the  right  to  infer  acquiescence  of  the 
plaintiff  in  the  correctness  of  such  charges,  and  the  plain- 
tiff is  now  estopped  to  deny  the  correctness  of  all  such 
items  to  which  he  did  not  object  in  proper  time;  and,  as 
to  all  such  items  of  the  plaintiff's  account,  you  must  find 
for  the  defendant.  Shrewsbury  v.  Tufts,  41  W.  Va.  219. 

n.     Contract  releasing  damages — Understanding  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  said  plaintiff  executed  the  paper  in- 
troduced in  evidence  dated  -  — ,  18 — ,  by  placing  his 
mark  thereto,  and  if  they  further  believe  that  the  said 
plaintiff  did  not  understand  the  contents  of  the  said 


162  CONTRACTS. 

paper,  and  could  not  read  the  same  because  he  did  not 
understand  the  English  language,  and  if  they  further  be- 
lieve that  nothing  was  done  by  any  person  connected  with 
the  defendant  company  or  with  the  relief  association  to 
prevent  the  said  plaintiff  from  having  the  said  paper 
translated  to  him,  or  from  otherwise  becoming  acquainted 
.  with  the  contents  of  the  same,-then  it  was  the  duty  of  the 
said  plaintiff  to  take  proper  precautions  himself,  and  of 
his  own  motion,  to  have  such  paper  translated  or  ex- 
plained to  him ;  and  if  he  chose  to  sign  the  same  without 
taking  such  precautions,  he  did  so  at  his  own  peril,  and 
must  take  the  consequences,  and  be  bound  by  the  paper, 
unless  the  jury  believe  he  was  induced  to  place  his  mark 
on  said  paper  by  misrepresentations  fraudulently  made. 
Unfried  v.  Railroad  Co.,  34  W.  Va.  268. 

o.    Building  and  construction  contracts — Contracts  with 

penalties  attached — Delay  in  completing  work. 
The  court  instructs  the  jury  that  if  they  believe 
from  the  evidence  that  the  whole  or  any  part  of  the 
delay  in  the  completion  of  the  work  provided  for 
in  the  written  contract  which  has  been  introduced  in 
evidence,  was  due  altogether  to  the  acts  or  defaults  of  the 
defendant  in  failing  to  comply  with  the  provisions  of  the 
agreement  which  were  to  be  complied  with  upon  its  part, 
then  the  plaintiff  is  not  chargeable  under  the  provisions 
of  the  agreement  with  the  delay  so  caused,  and  the  jury, 
if  it  should  find  from  the  evidence  that  the  plaintiff  is  en- 
titled to  credit  for  an  unpaid  portion  of  the  contract 
price,  should  not  charge  against  the  plaintiff  or  deduct 
from  the  amount  of  the  contract  price  due  under  the  con- 
tract, any  amount  either  at  the  rate  of  fifty  dollars  per 
day  or  at  any  other  rate  by  reason  of  such  delays  due  to 
the  acts,  omissions  or  neglect  of  the  defendant.  Wheeling 
M.  d-  F.  Co.  v.  Wheeling  8.  <i-  I.  Co.,  58  W.  Va.  — . 


CONTRACTS.  163 

p.    Same. 

The  jury  is  instucted  that  defendant  is  entitled  to  credit 
for  fifty  dollars  for  each  day  after  -  — ,  19 — ,  until  the 
plaintiff  completed  its  contract,  except  for  such  days  as 
the  delay  was  in  the  belief  of  the  jury  upon  the  evidence 
attributable  to  the  defendant.  Wheeling  M.  &  F.  Go.  v. 
Wheeling  8.  &  I.  Co.,  58  W.  Va.  — . 

q.    Same — Burden  of  proof. 

The  jury  is  instructed  that  upon  the  question  whether 
any  delay  in  the  completion  of  the  contract  was  attribu- 
table to  the  defendant  the  burden  of  proof  is  on  the  plain- 
tiff and  the  defendant  is  entitled  to  credit  for  any  delay 
which  is  not  shown  by  the  preponderance  of  evidence  to  be 
attributable  to  the  defendant.  Wheeling  M.  &  F.  Co.  v. 
Wheeling  8.  d  I.  Co.,  58  W.  Va.  — . 

r.    Delay  in  obtaining  material — Burden  of  proof. 

The  jury  is  instructed  that  the  plaintiff  is  responsible 
for  all  delays  resulting  from  the  failure  to  obtain 
promptly  material  purchased  from  third  parties  unless 
the  jury  believe  from  the  evidence  that  such  delays  are 
attributable  to  the  defendant,  and  upon  this  question  the 
burden  of  proof  is  on  the  plaintiff.  Wheeling  M.  &  F.  Co. 
v.  Wheeling  8.  &  I.  Co.,  58  W.  Va.  — . 

s.    Same — Plans  of  manufactured  portion  of  material. 

The  jury  are  instructed  that  the  defendant  is  not 
chargeable  with  delay  caused  by  the  corrections  of  any 
errors  in  the  machinery  which  might  have  been  discovered 
in  time  to  avoid  delay  if  the  plaintiff  had  made  reasonably 
careful  examination  of  the  plans  and  of  the  manufactured 
parts  of  machines.  Wheeling  M.  &  F.  Co.  v.  Wheeling  8.  & 
I.  Co.,  58  W.  Va.  — . 


104  CONTRACTS. 

t.    Same — As  to  when  delayed  material  needed. 

The  jury  are  instructed  that  the  defendant  is  not 
chargeable  with  any  delay  in  the  delivery  of  motors  under 
the  contract  unless  the  plaintiff  needed  such  motors  be- 
fore they  were  delivered.  WJweling  M.  tt-  F.  Co.  v.  Wheel- 
ing 8.  &  I.  Co.,  58  W.  Va.  — . 

u.  Same — Occupying  intervals  with  other  parts  of  work. 
The  jury  are  instructed  that  the  lateness  in  delivery  of 
any  motors  under  the  contract  was  not  the  cause  of  any 
delay  in  completing  the  contract  unless  the  plaintiff  was 
ready  for  such  motors  before  they  were  delivered,  and 
was  unable  to  occupy  the  interval  with  other  parts  of  this 
work.  Wheeling  If.  &  F.  Co.  v.  Wheeling  8.  &  I.  Co.,  58 
W.  Va.  — . 

v.     Contract  for  sawing  timber — Delays  in. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  -  had  a  contract  with  -  -  for  the 
hauling  of  all  the  timber  on  the  —  -  farm  and  that  under 

their  said  contract  said  —    —  had months  from  the  time 

their  said  contract  was  made  with  said  -  -  in  which  to 
haul  said  timber  to  the  mill  or  mills,  the  jury  are  hereby 
instructed  that  because  said  -  -  did  have  such  length  of 
time  in  which  to  haul  all  of  the  said  timber  on  said  land 
to  the  mill  or  mills  to  be  sawed,  this  length  of  time  per- 
mitted by  -  -  to  -  — ,  will  not  excuse  any  delay  on  the 
part  of  the  plaintiff  to  finish  sawing  under  his  contract 
of  — ,  19 — ,  which  plaintiff  could  have  reasonably 
avoided,  and  if  the  plaintiff  could  have  finished  his  saw- 
ing in  the  exercise  of  reasonable  diligence  sooner  than  the 
plaintiff  actually  did  conclude  the  sawing  of  lumber  and 
ties  under  said  contract  of  -  — ,  19 — ,  and  that  such  delay 
caused  the  defendants  damages,  then  the  jury  are  in- 
structed to  allow  to  defendants  any  such  damages  as  the 


CONTRACTS.  165 

evidence  shows  them  to  have  sustained  by  reason  of  such 
delay,  unless  it  appears  that  plaintiff  was  delayed  by  the 
failure  of  defendants  or  their  employes  to  keep  the  mill 
supplied  with  timber.  Vale  v.  Suitor  &  Duribar,  58  W. 
Va.  — . 

w.    Same — Failure  to  procure  help — Duty  to  procure 

help. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  men  in  the  employ  of  the  plaintiff 
quit  the  work  of  sawing  lumber  and  ties  for  the  defend- 
ants on  or  about  -  — ,  19 — ,  because  of  the  prevalence  of 
small-pox  or  the  reputed  prevalence  of  small-pox  in  the 
city  of  -  — ,  the  fact  that  such  men  did  so  quit  his 
employment  will  not  excuse  the  plaintiff  from  run- 
ning his  mill  steadily  thereafter  unless  the  jury  further 
believe  from  the  evidence  that  the  plaintiff  actually  did 
make  a  reasonable  and  diligent  effort  to  secure  other  men 
to  run  his  said  mill,  after  the  former  men  quit  his  employ- 
ment, unless  the  jury  further  believe  from  the  evidence 
that  the  plaintiff  could,  by  due  diligence,  have  procured 
competent  force  to  enable  him  to  carry  on  his  work  ac- 
cording to  the  contract  of  -  — ,  19 — ,  after  his  men  had  so 
quit  his  employment.  Vale  v.  Suitor  &  Duribar,  58  W. 
Va.  — . 

x.    Commissions  for  selling  lands — Terms  agreed  upon. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  and  all  the  circumstances  that  the  defendant 

— ,  employed  the  plaintiff  to  sell  his  farm  at  the  price 

of  $ ,  and  that  the  plaintiff  did  sell  said  farm  at  the 

price  and  upon  the  terms  agreed  upon  in  said  contract  of 
employment,  and  if  you  further  find  from  all  the  evidence 
and  circumstances  that  said  defendant  was  to  pay  said 

plaintiff  f for  making  said  sale,  then  you  should  find' 

for  the  plaintiff.  Oler  v.  Stephens,  54  W.  Va.  356. 


CONTRACTS. 


y.    Same  —  What  necessary  to  support  contracts. 

The  court  instructs  the  jury  that  it  is  not  necessary  in 
order  to  support  a  contract,  that  the  consideration  should 
consist  of  any  specified  sum  of  money  or  article  of  value, 
but  it  may  consist  of  an  act  to  be  performed,  and  if  the 
jury  believe  from  the  evidence  that  -  -  employed  - 
to  sell  his  lands  for  a  remuneration  stipulated  in  the  con- 
tract, to  be  paid  thereupon  the  sale  of  the  lands,  that  this 
will  be  a  sufficient  consideration.  Roicari  &  Co.  v.  Hull, 
55.  W.  Va.  340. 

z.     Same  —  Failure  to  complete  contract  —  Party  respon- 

sible for. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  —  -  was  a  real  estate  agent,  and  as  such 
agent,  had  a  contract  with  the  defendant  whereby  he  was 
to  sell  certain  lands  for  him,  and  in  pursuance  of  such 
contract  he  procured  a  purchaser  within  the  time  specified 
in  said  contract,  who  was  able,  ready  and  willing  to  buy 
on  the  terms  he  was  authorized  in  said  contract  to  sell, 
the  said  -  -  is  entitled  to  recover  the  commission  stipu- 
lated in  said  contract,  even  though  the  jury  further  be- 
lieve from  the  evidence  that  the  said  contract  of  purchase 
was  never  completed,  if  they  believe  the  completion  was 
prevented  by  the  act  or  default  of  the  defendant.  Rowan 
&  Co.  v.  Hull,  55  W.  Va.  340. 

zl.    Revocation  of  contract  —  Bona  fide  purchasers. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  plaintiff  procured  -  -  to  examine  said 
land  with  the  view  of  purchasing  the  same,  and  did  this 
before  any  revocation  of  their  contract,  and  that  the  said 
-  made  a  ftona  fide  offer  to  purchase  said  land  at  the 
'price  agreed  upon  in  said  contract  in  pursuance  of  his 
solicitation  by  said  -  ,  then  the  plaintiff  is  entitled  to 


CONTRACTS.  167 

recover  his  commission  as   stipulated   in   said    contract. 
Bo  wan  tC-  Co.  v.  Hull,  55  W.  Va.  340. 

z2.     Commissions  on  goods  not  sold  and  returned. 

The  court  instructs  the  jury  that  under  the  contract 
proven  by  the  plaintiff  he  is  not  entitled  to  commissions 
on  goods  returned,  but  only  on  actual  cash  payments  made 
on  the  goods  sold  by  him,  at  the  time  of  the  sale  or  after- 
wards; and  if  you  believe  from  the  evidence  that  any  of 
the  items  in  the  bill  of  particulars  mentioned  were  for 
commissions  on  goods  returned,  as  to  all  such  items  you 
must  find  for  the  defendant.  Shrewsbury  v.  Tufts,  41  W. 
Va.  220. 

z3.    Same — Ambiguous  contracts — Intention  of  Parties. 

The  court  instructs  the  jury  that  though  they  may  be- 
lieve from  the  evidence  that  the  contract  between  the 
plaintiff  and  defendant  may  have  been  originally  ex- 
pressed in  written  letters  and  printed  circulars,  yet,  if 
they  believe  that  any  of  the  terms  of  the  contract  so  ex- 
pressed were  ambiguous,  you  have  the  right  to  look  to 
the  surrounding  circumstances  existing  when  the  con- 
tract was  made,  at  the  situation  of  the  parties,  the  subject 
matter  of  the  contract,  and  all  the  subsequent  acts  of  the 
parties  under  said  contract,  to  determine  the  meaning  of 
the  contract  and  what  was  the  real  intention  and  contract 
between  the  parties.  Shrewsbury  v.  Tufts,  41  W.  Va.  221. 

2.       MODIFICATION  OF  CONTRACTS. 

a.  Modification  of  contract   by   changing   amount   of 

compensation  agreed  upon. 

b.  Same — Extension  of  time  for  performance  of  con- 

tract. 

c.  Same — Succession  to  rights  of  parties  to  contracts. 


108  CONTRACTS. 

i  hu 

a.  Modification  of  contract  by  changing  amount  of  com- 

pensation agreed  upon. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  contract  in  evidence  in  this  cause 
between  -  — ,  the  defendant,  on  the  one  part,  and  -  — , 
on  the  other  part,  was  made  for  the  prosecution  of  claims 
procured  by  the  plaintiff  for  the  defendant,  under  the  con- 
tract between  the  plaintiff  and"  the  defendant  entered  into 

— ,  18 — ,  also  in  evidence  in  this  cause;  and  that  the 
said  claims  were  prosecuted,  audited  and  paid  by  the 
proper  authorities,  and  the  commissions  collected  by  the 
said  defendant  in  execution  of  the  said  contracts,  then 
the  plaintiff  is  entitled  to  recover  on  the  sum  so  audited 
and  paid  the  amount  of  compensation  stipulated  to  be 
paid  to  the  plaintiff  in  the  contract  of  -  — ,  18 — ,  which 
amount  is  -  -  of  the  sum  which  the  jury  may  find  from 
the  evidence  was  received  as  compensation  by  the  defend- 
ant on  any  or  all  claims  aforesaid,  unless  the  jury  shall 
find  from  the  evidence  that  subsequent  to  the  date  of  said 
-  18 — ,  the  plaintiff  and  defendant  mutually  agreed  to 
modify  or  change  the  amount  of  compensation  as  fixed  by 
said  agreement,  in  which  event  the  amount  of  compensa- 
tion to  be  paid  by  the  defendant  to  the  plaintiff  will  be 
governed  by  the  subsequent  agreement  so  far  as  the  same 
was  agreed  by  the  plaintiff  and  defendant  to  apply  to  any 
or  all  of  the  claims  mentioned  in  the  bill  of  particulars. 
Logic  v.  Black,  24  W.  Va.  11. 

b.  Same — Extension   of  time  for  performance  of  con- 

tract. 

The  court  instructs  the  jury  that  if  they  be- 
lieve from  the  evidence  that  after  the  making  of 
the  written  agreement  between  the  plaintiff  and  the 
defendant,  which  has  been  introduced  in  evidence,  an  ar- 
rangement was  made  between  them  that  the  plans  referred 


CONTRACTS.  169 

to  in  the  agreement  should  be  modified,  and  if  they  further 
find  from  the  evidence  that  the  modifications  made  in  pur- 
suance of  this  agreement  necessitated  the  taking  of  a  longer 
time  for  the  completion  of  the  work  provided  for  in  the 
contract  than  would  have  been  needed  if  these  changes 
had  not  been  made,  then  the  plaintiff  is  not  chargeable  at 
the  rate  of  fifty  dollars  per  day  provided  for  in  the  agree- 
ment for  the  additional  time  made  necessary  by  these 
changes  in  the  plans.  Wheeling  M.  &  F.  Co.  v.  Wheeling 
8.  <&  I.  Co.,  58  W.  Va.  — . 

c.    Same — Succession  to  rights  of  parties  to  contracts. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  plaintiff,  before  the  —  of ,  18 — , 

gave  to  the  defendant  or  to  its  general  manager  notice  in 
writing  that  she  elected  to  extend  the  contract  of  - 
— ,  18 — ,  for  —  years  next  ensuing  —        — ,  18 — ,  then  the 
plaintiff  has  succeeded  to  the  rights  of  -     -  dec'd,  under 
said  contract.     Hurxthall  v.  Boom  Co.,  53  W.  Va.  94. 

3.       SEPARATE  AND  DISTINCT  CONTRACTS. 

a.  Termination  of  suits  dependent  upon  special  con- 

tracts. 

b.  Same — Documentary  evidence — Effect  of. 

a.    Separate   contracts — Termination   of   suit   dependent 

upon. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  contract  or  promise  set  out  in  the 
special  count  of  the  declaration,  in  which  it  is  alleged  that 

the  defendant  agreed  to  refund  the  $ ,  in  the  event  the 

ejectment  suit  of  -  -  v.  -  -  was  decided  against  plain- 
tiff in  said  suit,  and  that  said  contract  or  promise  was  a 
separate,  distinct  and  independent  contract;  and  if  they 
further  believe  from  the  evidence  that  said  suit  was  de- 


170  COUNTIES. 

cided  against  the  plaintiff,  and  judgment  was  rendered  in 
said  suit  for  the  defendant  before  the  institution  of  this 
suit,  and  the  money  paid  upon  said  contract,  in  said  event 
the  jury  should  find  for  the  plaintiff.  Sayre  v.  Edwards, 
19  W.  Va.  357. 

b.    Same — Documentary  evidence — Effect  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  contract  alleged  in  the  special  count 
of  the  declaration  contained  was  a  separate,  independent 
and  distinct  contract  between  plaintiff  and  defendant  in 
this  suit  from  that  contained  in  the  documentary  evi- 
dence, then  such  documentary  evidence  should  have  no 
effect  as  evidence  in  this  action.  Sayre  v.  Edioards,  19 
W.  Va.  357. 


CHAPTER  19. 
COUNTIES. 

a.     Statute  providing  for  prosecution  of  offenses  com- 
mitted within  one  hundred  yards  of  county  line, 
but  in  another  county,  held  unconstitutional. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  offense  named  in  the  indictment  was 
committed  not  in  Calhoun  county  but  in   Roane  county, 
the  jury  must  find  the  defendant  not  guilty,  even  if  they 
believe  that  the  evidence  proves  that  the  offense  was  com- 
mitted within  one  hundred  yards  of  the  county  line  of 
Calhoun  county.    State  v.  Lowe,  21  W.  Ya.  795. 


COVENANTS.  171 

CHAPTER  20. 
COVENANTS. 

a.  Breach  of  covenant — Paramount  title — Statute  of 

limitations. 

b.  Same — Negligence  causing  injury  to  water  mill. 

a.  Breach    of    covenant — Paramount    title — Statute    of 

limitations. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  at  the  time  of  conveyance  from  the  de- 
fendant to ,  shown  in  evidence,  and  bearing  date 

day  of  -  — ,  18 — ,  that  the  part  of  the  land  thereby  at- 
tempted to  be  conveyed,  embraced  by  the  alleged  interlock 

or  lap  with  the survey  of  -    -  acres,  now  claimed  by 

the  -  — ,  was  in  the  actual  possession  of  those  under 
whom  said  -  -  claims  by  title  paramount  to  the  title 
conveyed  by  said  -  -  to  -  — ,  then  there  was  a  breach 
of  said  covenant  in  said  conveyance  eo  instanti,  and  if 
more  than  ten  years  elapsed  from  that  time  before  the 
bringing  of  this  suit,  the  action  is  barred,  and  the  jury 
should  find  for  the  defendant.  Illsley  v.  Wilson,  42  W. 
Va.  763. 

b.  Same — Negligence  causing  injury  to  water  mill. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  plaintiff  has  negligently  permitted 
gravel,  mud,  sand,  &c.,  to  accumulate  in  the  mill  race  at 
the  mouth  of  the  branch  or  at  any  other  points,  or  that 
she  has  been  guilty  of  any  other  negligent  act  whereby 
the  supply  of  water  to  the  mill  has  been  diminished,  such 
negligence  can  only  be  considered  in  fixing  the  amount  of 
plaintiff's  damages,  and  does  not  excuse  defendant  from 


172  CRIMINAL  LAW. 

performing  its  covenants.    Hurjrtluill  v.  Boom  Co.,  53  W. 
Va.  94. 


CHAPTER  21. 
CRIMINAL  LAW. 

1.  PRESUMPTION  OF  INNOCENCE. 

2.  REASONABLE  DOUBT. 

3.  CIRCUMSTANTIAL  EVIDENCE. 

4.  CHARACTER  AND  MOTIVE  OF  WITNESSES. 

5.  CREDIBILITY  OF  WITNESSES — WEIGHT  OF   EVIDENCE. 

6.  INSANITY   AND  INTOXICATION. 

7.  ALIBI. 

8.  ADMISSIONS  AND  CONFESSIONS. 

9.  DEGREES  OF  PUNISHMENT. 

1.      PRESUMPTION  OF  INNOCENCE. 

a.  Presumption  of  innocence  and  proof  required. 

b.  Same — Presumption  of  innocence  .defined. 

a.  Presumption  of  innocence  and  proof  required. 

The  court  instructs  the  jury  that  the  defendant  is,  by 
law,  presumed  to  be  innocent,  and  that  it  is  the  duty  of 
the  state  to  prove  him  guilty,  as  charged  in  the  indict- 
ment, beyond  all  reasonable  doubt;  and  if  the  state  fail 
to  prove  every  material  allegation  in  the  indictment,  then 
the  jury  must  find  him  not  guilty.  Ktate  v.  JJobbs.  37  W. 
Va.  820. 

b.  Same — Presumption  of  innocence  defined. 

The  court  instructs  the  jury  that  the  presumption  of 
innocence  is  not  a  mere' form,  to  be  disregarded  by  the 


CRIMINAL  LAW.  173 

jury  at  pleasure,  but  it  is  an  essential  and  substantial 
part  of  the  law  of  the  land,  and  binding  on  the  jury  in 
this  case;  and  it  is  the  duty  of  the  jury  to  give  the  de- 
fendant in  this  case  the  full  benefit  of  the  presumption, 
and  to  acquit  the  defendant  unless  they  feel  compelled  to 
find  him  guilty,  as  charged,  by  the  law  of  the  land  and 
the  evidence  in  this  case,  convincing  them  of  his  guilt,  as 
charged,  beyond  all  reasonable  doubt.  State  v.  Lowry, 
42  W.  Va.  210. 

2.      REASONABLE  DOUBT. 

a.  Doubt  as  to  whether  murder  committed. 

b.  Doubt  as  to  whether  murder  or  suicide. 

c.  Reasonable  doubt  defined. 

d.  Same — Substantial  doubt — Not  a  mere  possibility 

of  innocence. 

e.  Same — Must  not  be  an  arbitrary  doubt. 

f.  Same — Must  not  be  a  vague  or  uncertain  doubt. 

g.  Same. 

h.  Same — Moral  certainty — Not  an  absolute  certainty, 

i.  Same — Chimerical  or  conjectural  doubt, 

j.  Same — Doubt  produced  by  undue  sensibility, 

k.  Same — Doubt  as  to  identity  of  person  accused. 

a.  Doubt  as  to  whether  murder  committed. 

The  court  instructs  the  jury  that  if  they  entertain  any 
reasonable  doubt  from  the  evidence  as  to  whether  - 
was  murdered  or  not,  they  should  find  the  defendant  not 
guilty.    State  v.  Ice,  34  W.  Va.  251. 

b.  Doubt  as  to  whether  murder  or  suicide. 

The  court  instructs  the  jury  that  if  after  considering 
all  the  evidence  and  circumstances,  they  have  a  reasonable 
doubt  as  to  whether  the  defendant  shot  and  killed  the  de- 


174  CRIMINAL  LAW. 

ceased,  or  whether  she  shot  and  killed  herself,  then  they 
must  give  the  defendant  the  benefit  of  such  doubt  and 
acquit  him.  State  v.  Kerns,  47  W.  Va.  270. 

c.  Reasonable  doubt  defined. 

The  court  instructs  the  jury  that  after  they  shall  have 
compared  and  considered  all  the  evidence  in  the  case  if 
they  have  a  reasonable  doubt  as  to  the  guilt  of  the  pris- 
oner, as  charged  in  the  indictment,  they  cannot  convict; 
that  by  reasonable  doubt  is  meant  such  a  doubt,  based  up- 
on the  evidence,  as  they  may  honestly  and  reasonably  en- 
tertain as  to  any  material  fact  essential  to  prove  the  crime 
charged.  It  must  not  be  an  arbitrary  doubt,  without  evi- 
dence to  sustain  it,  but  must  be  serious  and  substantial  in 
its  nature,  in  order  to  warrant  an  acquittal  and  one  which 
men  may  honestly  and  conscientiously  entertain.  State 
v.  Hatfield,  48  W.  Va.  572. 

d.  Same — Substantial  doubt — Not  a  mere  possibility  of 

innocence. 

The  court  instructs  the  jury  that  if  they  have  a  reason- 
able doubt  of  the  defendant's  guilt  they  must  acquit  him, 
but  a  doubt  to  authorize  an  acquittal  must  be  a  substan- 
tial doubt  arising  from  the  insufficiency  of  evidence  and 
not  a  mere  possibility  of  innocence,  and  a  reasonable 
doubt  is  that  state  of  the  case  which  after  the  entire  com- 
parison and  consideration  of  all  the  evidence  leaves  the 
minds  of  the  jurors  in  that  condition  that  they  canno\ 
say  that  they  feel  an  abiding  conviction  to  a  moral  cer- 
tainty of  the  truth  of  the  charge.  State  v.  Sickle,  53  W. 
Va.  598. 

e.  Same — Must  not  be  an  arbitrary  doubt. 

The  court  instructs  the  jury  that  after  they  shall  have 
compared  and  considered  all  the  evidence  in  the  case,  if 


CRIMINAL  LAW.  175 

they  have  a  reasonable  doubt  as  to  the  guilt  of  the  pris- 
oner, as  charged  in  the  indictment,  they  cannot  convict; 
that  by  reasonable  doubt  is  meant  such  doubts  based  upon 
the  evidence  as  they  may  honestly  and  reasonably  enter- 
tain as  to  any  material  fact  essential  to  prove  the  crime 
charged.  It  must  not  be  an  arbitrary  doubt,  without  evi- 
dence to  sustain  it,  but  it  must  be  serious  and  substantial 
in  its  nature,  in  order  to  warrant  an  acquittal,  and  one 
which  men  may  honestly  and  conscientiously  entertain. 
State  v.  Staley,  45  W.  Va.  797. 

f .  Same — Must  not  be  a  vague  or  uncertain  doubt. 

The  court  instructs  the  jury  that  a  reasonable  doubt  is 
not  a  vague  or  uncertain  doubt,  and  what  the  jury  believe 
from  the  evidence  as  men,  they  should  believe  as  jurors, 
yet,  if  upon  the  evidence  in  this  case  such  a  doubt  is  raised 
as  would  cause  a  juror  to  hesitate  and  to  refrain  from  act- 
ing were  it  a  grave  business  matter,  then  such  doubt  is  a 
reasonable  doubt  and  such  juror  should  give  the  defend- 
ant the  benefit  of  that  doubt.  State  v.  Dickey,  48  W.  Va. 
326. 

g.  Same. 

The  court  instructs  the  jury  that  a  reasonable  doubt  is 
not  a  vague  or  uncertain  doubt  and  what  the  jury  believe 
from  the  evidence  as  men  they  should  believe  as  jurors. 
State  v.  Sickle,  53  W.  Va.  599. 

h.    Moral  certainty — Absolute  certainty. 

The  court  instructs  the  jury  that  proof  beyond  a  reason- 
able doubt  is  not  beyond  all  possible  or  imaginary  doubt, 
but  proof  to  a  moral  certainty,  rather  than  an  absolute 
certainty.  State  v.  Ice,  34  W.  Va.  251. 

i.    Same — Chimerical  or  conjectural  doubts. 

The  court  instructs  the  jury  as  a  matter  of  law  that  in 


17(>  CRIMINAL  LAW. 

considering  the  case  the  jury  are  not  bound  to  go  beyond 
the  evidence  to  hunt  up  doubts  nor  must  they  entertain 
such  doubts  as  are  merely  chimerical  or  conjectural.  A 
doubt  to  justify  an  acquittal  must  be  reasonable  and  must 
arise  from  a  candid  and  impartial  investigation  of  all  the 
evidence  in  the  case,  and  unless  it  is  such  that  were  the 
same  kind  of  doubt  interposed  in  a  graver  transaction  of 
life  it  would  cause  a  reasonable  and  prudent  man  to  hesi- 
tate and  pause  it  is  insufficient  to  authorize  a  verdict  of 
not  guilty.  If  after  considering  all  the  evidence  the  jury 
can  say  the}'  have  an  abiding  conviction  of  the  truth  of 
the  charge  they  are  satisfied  beyond  a  reasonable  doubt. 
State  v.  Bickle,  53  W.  Va.  599. 

j.  Same — Doubt  produced  by  undue  sensibility — Oath  of 
juror — What  imposed  upon  him  by — Juror's  duty 
to  the  state  and  to  himself. 

The  court  instructs  the  jury  that  a  doubt  produced  by 
undue  sensibility  in  the  mind  of  the  juror  in  view  of  the 
consequences  of  his  verdict  is  not  a  reasonable  doubt  and 
the  juror  is  not  allowed  to  create  sources  of  material  for 
doubt  by  resorting  to  trivial  or  fanciful  suppositions  and 
remote  conjectures  as  to  a  possible  state  of  facts  differing 
from  that  established  by  the  evidence.  The  oath  of  a  juror 
imposes  upon  him  no  obligation  to  doubt  where  no  doubt 
would  exist  if  no  oath  had  been  administered.  When  a 
circumstance  is  of  a  doubtful  character  the  accused  is 
entitled  to  the  benefit  of  the  doubt.  If,  however,  all  the 
facts  established  necessarily  lead  the  mind  to  the  conclu- 
sion that  the  defendant  is  guilty  though  there  be  a  bare 
possibility  merely,  not  supported  by  some  good  reason 
therefor  that  he  is  innocent,  the  jury  should  find  him 
guilty.  A  juror's  duty  to  the  state,  to  society  and  to 
himself  is  equally  sacred  to  hold  for  conviction,  if  he  has 
an  abiding  satisfaction  of  defendant's  guilt,  and  if  after 


CRIMINAL  LAW.  177 

deliberation,  no  juror  is  possessed  of  any  good. reason  to 
doubt  the  defendant's  guilt,  it  is  the  duty  of  the  jury  to 
find  him  guilty.  State  v.  Sickle,  53  W.  Va.  599. 

k.     Doubt  as  to  identity  of  person  accused. 

The  court  instructs  the  jury  that  after  considering  all 
the  evidence  introduced  by  the  prosecution,  and  all  the 
evidence  introduced  by  the  defense  they  entertain  any 
reasonable  doubt  as  to  whether  the  defendant  has  been 
identified  as  the  person  who  committed  the  offense 
charged  in  the  indictment,  then  the  jury  are  instructed 
that  they  find  the  defendant  not  guilty.  State  v.  Lowry, 
42  W.  Va.  211. 

3.      CIRCUMSTANTIAL  EVIDENCE. 

a.  Character  of  circumstantial  evidence  necessary  for 

conviction. 

b.  What  the  circumstances  should  exclude  to  a  moral 

certainty. 

a.  Character  of  circumstantial  evidence  necessary  for 
conviction — Competency  of  circumstantial  evidence. 
The  court  instructs  the  jury  that  one  charged 
with  crime  may  be  convicted  by  a  jury  upon 
circumstantial  evidence  alone,  if  the  jury  believe 
beyond  a  reasonable  doubt,  from  said  circumstantial 
evidence,  that  the  person  so  charged  is  guilty  of 
the  crime  alleged  against  him.  Therefore  the  court 
instructs  the  jury  in  this  case  that  they  have  the  right 
to  convict  the  defendant  upon  circumstantial  evidence 
alone,  if  the  jury  believe  from  said  circumstantial  evi- 
dence the  guilt  of  the  defendant  beyond  a  reasonable 
doubt.  And  the  court  further  instructs  the  jury  that  cir- 
cumstantial evidence  in  criminal  cases  is  not  only  com- 


178  CRIMINAL  LAW. 

petent  evidence,  but  is  sometimes  the  only  mode  of  proof, 
and  therefore,  if  the  jury  believe  from  the  evidence 
and  circumstances  in  this  case  and  beyond  a  rea- 
sonable doubt,  that  the  defendant,  with  a  deadly 
weapon,  gave  to  the  deceased  a  mortal  wound,  without 
any  provocation,  from  which  wound  she  died  within  a  few 
days  from  the  time  it  was  so  inflicted,  that  the  said  de- 
fendant was  guilty  of  willful,  deliberate  and  premeditated 
murder,  unless  he  shows  extenuating  circumstances,  or 
they  appear  by  the  case  made  by  the  state,  and  if  he  fail 
to  show  extenuating  circumstances,  and  they  do  not  ap- 
pear from  the  case  made  by  the  state  and  all  the  evidence 
considered,  the  jury  should  find  him  guilty  of  murder  in 

the  first  degree.    State  v.  Sheppard,  49  W.  Ya.  607. 

• 

b.    What  the  circumstances  should  exclude  to  a  moral 

certainty. 

The  court  instructs  the  jury  that  if  the  state  relies  for 
a  conviction  in  this  case  upon  evidence  in  whole  or  in  part 
circumstantial,  then  it  is  essential  that  the  circumstances 
should,  to  a  moral  certainty,  actually  exclude  every 
hypothesis  but  the  one  proposed  to  be  proved,  and  that 
unless  they  do,  to  a  moral  certainty,  actually  exclude 
every  hypothesis  but  the  one  proposed  to  be  proved,  then 
they  should  find  the  prisoner  not  guilty.  State  v.  Allen, 
45  TV.  Va.  76. 

4.      CHARACTER  AND  MOTIVE  OF  WITNESSES. 

a.  Character  and  motive  of  witnesses. 

b.  Testimony  of  accused — Consideration  of. 

c.  Impeached  witnesses — Testimony  of. 

a.     Character  and  motive  of  witness. 

The  court  instructs  the  jury  that  in  arriving  at  a  ver- 


CRIMINAL  LAW.  179 

diet  in  this  case  that  they  are  the  sole  judges  of  the  facts, 
and  credibility  of  each  and  every  witness  introduced  in 
this  case,  and  that  they  have  the  right  to  disregard  the 
testimony  of  any  witness  or  witnesses  who,  in  the  opinion 
of  the  jury,  may  have  testified  falsely  in  this  case,  or  give 
to  the  testimony  of  any  such  witness  such  weight  as  in 
the  opinion  of  the  jury  the  same  may  be  entitled  to,  and 
in  ascertaining  such  weight  the  jury  may  take  into  con- 
sideration the  character  and  motive  of  the  witness  as  dis- 
closed by  the  evidence  in  this  case.  State  v.  Roberts,  50 
W.  Va.  428. 

b.  Testimony  of  accused — Consideration  of. 

The  court  instructs  the  jury  that  in  considering  all  the 
evidence  in  this  case  they  may  consider  the  evidence  of 
the  prisoner  and  how  far,  if  at  all,  his  interest  in  the  case 
might  bias  his  testimony,  and  that  they  give  his  evidence 
and  all  the  other  evidence  in  the  case  such  weight  as  they 
may  think  it  entitled  to.  State  v.  Dodds,  54  W.  Va.  293. 

c.  Impeached  witness — Consideration  of  testimony  of. 
The  court  instructs  the  jury  that  they  are  not  required 

by  law  to  disbelieve  a  witness  who  has  testified  before 
them  in  this  case  because  the  general  reputation  of  such 
witness  for  truth  and  veracity  in  the  neighborhood  where 
he  resides  has  been  proven  to  be  bad,  and  said  witness 
shown  not  to  be  entitled  to  credit  when  on  oath,  but  it  is 
the  province  of  the  jury  to  give  the  evidence  of  any  wit- 
ness who  has  testified  in  this  case  such  credit  as  the  jury 
may  believe  from  all  the  facts  and  circumstances  in  this 
case  it  is  entitled  to,  the  jury  being  the  sole  judges  of  the 
evidence  as  well  as  the  credibility  of  the  witnesses  who 
have  testified  in  this  case.  State  v.  Roberts,  50  W.  Va. 
426. 


CRIMINAL  LAW. 
5.      CREDIBILITY  OF  WITNESSES  —  WEIGHT  OF  EVIDENCE. 


a.  What  considered  in  determining  —  Jury  sole  judges 

of. 

b.  Same  —  Reasonableness  of  statements  of. 

c.  Same  —  Intelligence  and  conduct  of  witnesses. 

d.  Same  —  Witnesses  testifying  falsely. 

e.  Same. 

a.  What  considered  in  determining  —  Jury  sole  judges  of 

evidence. 

The  court  instructs  the  jury  that  they  are  the  sole 
judges  of  the  evidence,  and  that  they  may  believe  or  refuse 
to  believe  any  witness,  and  that  when  passing  upon  the 
credibility  of  any  witness  they  may  rightly  take  into  con- 
sideration his  interest  in  the  matter  in  controversy  and 
his  demeanor  upon  the  witness  stand.  State  v.  Dickey,  48 
W.  Va.  326. 

b.  Same  —  Reasonableness  of  statements  of. 

The  court  instructs  the  jury  that  they  are  the  sole 
judges  of  the  evidence  and  that  they  may  believe  or  refuse 
to  believe  any  witness  and  that  when  passing  upon  the 
credibility  of  any  witness  they  may  take  into  considera- 
tion his  interest  in  the  matter  in  controversy,  the  reason- 
ableness or  unreasonableness  of  his  statement,  his  bias  or 
prejudice  in  the  matter,  if  any  appear,  and  his  demeanor 
upon  the  witness  stand.  State  v.  Blckle,  53  W.  Va.  600. 

c.  Same  —  Intelligence  and  conduct  of  witness. 

The  court  instructs  the  jury  that  they  are  the  sole 
judges  of  the  evidence  in  this  case  as  well  as  the  credibility 
of  witnesses  testifying  before  them,  and  in  determining 
the  weight  to  be  given  to  the  evidence  of  any  witness  who 
has  testified  they  have  the  right  to  take  and  consider  the 


CRIMINAL  LAW.  181 

intelligence  of  such  witness,  his  conduct,  appearance  and 
demeanor  while  testifying,  as  well  as  the  interest  such 
witness  may  have  in  the  result  of  the  trial,  and  from  all 
these,  and  all  other  facts  and  circumstances  in  the  case, 
give  the  evidence  of  such  witness  such  credit  as  the  jury 
may  believe  it  entitled  to,  the  jury  being  the  sole  judges  of 
the  evidence  and  the  weight  thereof,  as  well  as  the  credi- 
bility of  the  witnesses  who  testified  in  the  case.  State  v. 
Roberts,  50  W.  Va.  427. 

d.  Same — Testifying  falsely — Consideration  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  any  witness  who  has  testified  in  this 
case  has  knowingly  and  wilfully  testified  falsely  to  any 
material  fact  in  this  case,  they  may  disregard  the  whole 
testimony  of  such  witness,  or  they  may  give  such  weight 
to  the_evidence  of  such  witness  on  other  points  as  they 
may  think  it  entitled  to.  The  jury  are  the  exclusive 
judges  of  the  weight  of  testimony.  State  v.  Thompson,  21 
W.  Va.  746. 

e.  Same. 

The  court  instructs  the  jury  that  they  are  the  sole 
judges  of  the  weight  of  testimony  of  any  witness  who  has 
testified  before  them  in  this  case,  and  in  ascertaining  such 
weight,  they  have  the  right  to  take  into  consideration  the 
credibility  of  such  witness,  as  disclosed  from  his  evidence, 
his  manner  of  testifying  and  demeanor  upon  the  witness 
stand,  and  his  apparent  interest,  if  any,  in  the  result  of 
the  case.  And  if  the  jury  believe  that  any  witness  has 
testified  falsely  as  to  any  material  fact,  they  have  the 
right  to  disregard  all  the  testimony  of  such  witness  so 
testifying  falsely,  or  to  give  his  testimony,  or  any  part 
thereof,  such  weight  only  as  the  same  in  their  opinion, 
may  be  entitled  to.  State  v.  Staleij,  45  W.  Va.  797. 


182  CRIMINAL  LAW. 

6.      INSANITY  AND   INTOXICATION — MENTAL  CAPACITY. 

a.  Sanity  presumed — How  presumption  overcome. 

b.  Necessity  for  proving  insanity  when  relied  on  as 

defense. 

c.  Same — Fanciful  grounds  for  believing  person   in- 

sane. 

d.  Mental  capacity  for  knowing  consequence  of  act. 

e.  Same. 

f.  Same — Mental  aberration. 

g.  Intoxication — When   evidence   as   to  may   be   con- 

sidered. 

h.     Same — When  intoxication  does   not   excuse   homi- 
cide. 

i.     Age  for  capacity  to  commit  crime. 

j.      Same. 

a.  Sanity  presumed — How  presumption  overcome. 

The  court  instructs  the  jury  that  every  man  is  pre- 
sumed to  be  sane  and  to  possess  a  sufficient  degree  of  rea- 
son to  be  responsible  for  his  crimes  until  the  contrary  is 
proved  to  their  satisfaction ;  that  if  the  jury  believe  from 
the  evidence  that  the  prisoner  fired  the  shot  which  caused 
the  death  of  -  — ,  as  charged  in  the  indictment,  and  at 
the  time  of  the  firing  of  said  shot,  the  prisoner  was  labor- 
ing under  such  defect  of  reason,  from  any  disease  or  com- 
bination of  diseases,  of  the  mind,  or  remotely  produced  by 
previous  habits  of  gross  intemperance,  as  not  to  know  the 
nature  or  possible  consequences  of  his  act,  or  if  he  did 
know,  then  that  he  did  not  know  that  what  he  was  doing 
was  wrong,  they  will  find  the  prisoner  not  guilty.  State 
v.  Robinson,  20  W.  Va.  728. 

b.  Necessity  for  proving  insanity  relied  on  as  defense. 
The  court  instructs  the  jury  that  to  entitle  the  prisoner 


CRIMINAL  LAW.  183 

to  an  acquittal  upon  the  ground  that  he  was  insane  at  the 
time  of  the  commission  of  the  offense  charged  in  the  in- 
dictment, such  insanity  must  be  proved  to  the  satisfaction 
of  the  jury ;  and  in  passing  upon  this  question  they  may 
look  at  the  whole  evidence  in  the  case,  as  well  that  for  the 
state  as  for  the  prisoner.  State  v.  Robinson,  20  W.  Va. 
744. 

c.  Same — Fanciful  grounds  for  believing  person  insane — 

How  considered. 

The  court  instructs  the  jury  that  when  insanity  is  re- 
lied on  as  a  defense  to  a  charge  of  crime,  it  must  be  proved 
to  the  satisfaction  of  the  jury,  in  order  to  entitle  the  ac- 
cused to  an  acquittal  on  that  ground.  If  upon  the  whole 
evidence  the  jury  believe  that  the  prisoner  was  insane, 
when  he  committed  the  deed,  they  will  acquit  him  on  that 
ground,  but  not  on  the  fanciful  ground,  that,  though  they 
may  believe  he  was  then  sane,  yet,  as  there  may  be  a  rea- 
sonable doubt  of  such  sanity,  he  is  therefore  entitled  to  an 
acquittal.  State  v.  Maier,  36  W.  Va.  770. 

d.  Mental  capacity  for  knowing  consequence  of  act. 
The  court  instructs  the  jury  that  if  they  believe  from  the 

evidence  beyond  a  reasonable  doubt  that  the  prisoner,  at 
the  time  of  firing  the  shot  or  shots  which  caused  the  death 
of  -  — ,  was  capable  of  knowing  the  nature  and  conse- 
quence of  his  act,  and  if  he  did  not  know,  then  that  he 
knew  he  was  doing  wrong,  and  that  so  knowing  he  fired 
the  shot  or  shots  at  the  deceased  with  the  willful,  delib- 
erate and  premeditated  purpose  of  killing  her,  they  will 
find  the  prisoner  guilty  of  murder  in  the  first  degree. 
State  v.  Harrison,  36  W.  Va.  740. 

e.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 


184  CRIMINAL  LAW. 

the  evidence  beyond  a  reasonable  doubt,  that  the  prisoner, 
though  intoxicated  at  the  time  of  the  firing  of  the  shot, 
\\iiirh  caused  the  death  of  the  deceased,  was  capable  of 
knowing  the  nature  and  consequences  of  his  act,  and  if  he 
did  know,  then  that  he  knew  he  was  doing  wrong,  and 
that  so  knowing  he  fired  the  shot  at  the  deceased  with  the 
willful,  deliberate  and  premeditated  purpose  of  killing 
him,  they  will  find  the  prisoner  guilty  of  murder  in  the 
first  degree.  State  v.  Robinson,  20  W.  Va.  743. 

f.  Same — Mental  aberration. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  -  murdered  -  — ,  as  charged  in  the 
indictment,  and  had  at  the  time  sufficient  power  of  mind 
to  distinguish  between  the  right  and  the  wrong  of  such  an 
act,  although  they  may  believe  he  suffered  from  mental 
aberration  as  to  other  matters,  the  verdict  ought  to  be 
•'guilty."  State  v.  Maier,  36  W.  Va.  770. 

g.  Intoxication — When  evidence  as  to  is  competent  for 

consideration  of  jury. 

The  court  instructs  the  jury  that  where  a  statute  estab- 
lishes degrees  of  the  crime  of  murder,  and  provides  that 
all  willful,  deliberate  and  premeditated  killing  shall  be 
murder  in  the  first  degree,  the  evidence  given  on  the  trial 
tending  to  prove  that  the  accused  was  intoxicated  at  the 
time  of  the  killing,  is  competent  for  the  consideration  of 
the  jury  upon  the  question  whether  the  accused  was  in 
such  a  condition  of  mind  as  to  be  capable  of  deliberation 
and  premeditation.  State  v.  Hcrtzog,  55  W.  Va.  83. 

h.    When  intoxication  does  not  excuse  homicide. 

The  court  instructs  the  jury  that  if  they  believe  from 
all  the  facts  and  circumstances  in  the  case,  that  the 
prisoner  wilfully,  maliciously,  deliberately  and  premedi 


CRIMINAL  LAW.  185 

tatedly  killed  the  deceased,  they  should  find  him  guilty  of 
murder  in  the  first  degree,  although  he  was  intoxicated  at 
the  time  of  the  killing.  State  v.  Douglass,  28  W.  Va.  301. 

i.    Age  for  capacity  to  commit  crime — How  determined. 

The  court  instructs  the  jury  that  to  establish  capacity 
to  commit  crime  in  a  person  over  seven  and  under  four- 
teen years,  it  is  not  necessary  that  any  witness  shall 
state  that  he  has  such  capacity,  but  the  same  may  be 
shown  to  exist  by  the  appearance  and  general  conduct  of 
the  accused,  and  by  his  testimony  as  a  witness  before  the 
jury.  State  v.  Williams,  40  W.  Va.  269. 

j.    Same. 

The  court  instructs  the  jury  that  a  person  is  amenable 
to  punishment  for  crime  if  he  be  of  sufficient  understand- 
ing to  be  able  to  distinguish  right  from  wrong.  State  v. 
Williams,  40  W.  Va.  269. 

7.       ALIBI. 

a.  In  general. 

b.  Eeasonable  doubt  as  to  establishment  of  alibi. 

c.  Failure  of  full  proof  of  alibi. 

a.    In  general. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  at  the  time  the  paper  writing  mentioned 
in  the  indictment  was  forged  or  uttered,  or  attempted  to 
be  employed  as  true,  with  the  knowledge  that  said  paper 
writing  was  false  and  forged,  if  at  that  time  the  defend- 
ant, -  — ,  was  in  -  — ,  Ky.,  as  shown  by  the  witness  for 
the  defendant,  and  was  not  present  in  -  — ,  -  -  county, 
W.  Va.,  at  the  time  the  alleged  offense  was  committed, 


186  CRIMINAL  LAW. 

t 

then  the  jury  are  instructed  that  they  must  acquit  the  de- 
fendant.   State  v.  Lowry,  42  W.  Va.  210. 

b.  Reasonable  doubt  as  to  establishment  of  alibi. 

The  court  instructs  the  jury  that  if  they  entertain  any 
reasonable  doubt  as  to  whether  or  not  the  defendant  was 
in  -  — ,  Ky.,  or  -  — ,  in  -  -  county,  W.  Va.,  at  the  time 
the  offense  charged  was  committed,  then  it  is  a  rule  of  law 
inflexible  in  its  operation,  and  the  sworn  duty  of  the  jury, 
to  give  the  benefit  of  such  doubt  to  the  defendant  and  to 
acquit  him.  State  v.  Lowry,  42  W.  Va.  210. 

c.  Failure  of  full  proof  of  alibi. 

The  court  instructs  the  jury  that  if  they  should  enter- 
tain a  reasonable  doubt  as  to  the  defendant's  guilt,  they 
should  find  him  not  guilty,  although  the  jury  might  not 
be  able  to  find  that  the  alibi  was  fully  proved.  State  v. 
Lowry,  42  W.  Va.  211. 

8.  ADMISSIONS  AND  CONFESSIONS. 

a.    What  may  be  believed  and  what  rejected. 

The  court  instructs  the  jury  that  where  a  confession  is 
received  in  evidence,  the  jury  may  believe  that  which 
charges  the  prisoner,  and  reject  that  which  is  in  his  favor 
if  they  see  sufficient  grounds  for  so  doing  from  the  evi- 
dence in  the  case.  State  v.  Allen,  45  W.  Va.  75. 

9.  DEGREES  OP  PUNISHMENT. 

a.    What  verdicts  permitted  under  indictment  for  murder 

— Punishments  imposed. 

The  court  instructs  the  jury  that  in  the  indictment  in 
this  case  there  is  charged  murder  of  the  first  degree,  mur- 
der in  the  second  degree,  voluntary  manslaughter,  invol- 


DAMAGES.  187 

untary  manslaughter  and  assault  and  battery.  Murder 
of  the  first  degree  is  punished  in  this  state  by  death  or 
confinement  in  the  penitentiary  for  life.  Murder  of  the 
second  degree  is  punished  by  confinement  in  the  peniten- 
tiary not  less  than  five  nor  more  than  eighteen  years. 
Voluntary  manslaughter  is  punished  by  confinement  in 
the  penitentiary  not  less  than  one  nor  more  than  five 
years.  Involuntary  manslaughter  and  assault  and  bat- 
tery are  misdemeanors  and  punished  by  confinement  in 
jail  or  by  fine  or  both.  State  v.  Dodds,  54  W.  Va.  293. 


CHAPTER  22. 
DAMAGES. 

1.  GENERAL  PRINCIPLES. 

2.  EXEMPLARY,  PUNITIVE  OR  VINDICTIVE  DAMAGES. 

3.  COMPENSATORY  DAMAGES. 

1.      GENERAL  PRINCIPLES. 

a.  Defective    machinery     and     appliances — Duty     of 

master  as  to. 

b.  Same — Knowledge  of  master  as  to. 

c.  Safe  means  of  transportation — Duty  of  railroads  to 

furnish  employes  with. 

d.  Ejecting  passengers  from  passenger  trains. 

e.  Ejecting  persons  from  freight  trains. 

f.  Same — Use  of  needless  force  in. 

g.  Unlawful  combinations — Liability  of   persons    act- 

ing under. 

h.    Diversion  of  stream  of  surface  water, 
i.     Defective  plumbing — Injury  to  tenant  caused  by. 


188  DAMAGES. 

j.  Changing  grade  of  streets — Injury  to  property 
caused  by. 

k.     Injury  to  land  leased  for  specific  use. 

1.  Permanent  injury  to  real  estate  by  railroad  com- 
pany. 

m.    Delay  in  sawing  timber. 

n.  Injury  to  water  mill  by  construction  and  use  of 
boom. 

o.     Mitigation  of  damages. 

a.  Defective  machinery  and  appliances — Duty  of  master 

as  to. 

The  court  instructs  the  jury  that  it  is  the  duty  of  the 
master  who  sets  a  servant  to  work  in  a  place  of  danger,  or 
with  dangerous  machinery  or  appliances,  to  give  him  such 
notice  and  instructions  as  are  reasonably  required  by  the 
youth,  inexperience  or  want  of  capacity  of  the  servant; 
and  failing  to  do  so,  the  master  is  liable  for  the  damage 
suffered  through  such  failure.  Giebell  v.  Collins  Co.,  54 
W.  Va.  525. 

b.  Same — Knowledge  of  master  as  to. 

The  court  instructs  the  jury  that  if  they  believe  from 
all  the  evidence  and  circumstances  that  the  defendant 
knew,  or  by  the  exercise  of  due  care  and  caution  could 
have  known,  that  the  said  -  was  not  of  sufficient 
strength  to  bear  the  pressure  necessary  to  be  brought 
upon  it  in  performing  the  work  required  to  be  done  by 
the  plaintiff,  and  further,  that  the  same  was  not  sufficient, 
then  the  defendant  was  guilty  of  negligence  and  liable  to 
the  plaintiff  in  damages,  not  exceeding  the  sum  laid  in 
the  declaration,  unless  they  further  believe  from  all  the 
evidence  and  circumstances,  to  their  satisfaction,  that 
the  plaintiff  also  knew,  or  by  the  exercise  of  due  care  and 
caution  could  have  known  that  the  said was  insuffi- 


DAMAGES.  189 

cieiit  to  bear  the  pressure  necessary,  in  the  performance 
of  the  work  aforesaid.  Hoffman  v.  Dickinson,  31  W.  Va. 
150. 

c.  Safe  means  of  transportation — Duty  of  railroad  com- 

pany to  furnish  employes  with. 

The  court  instructs  the  jury  that  it  is  the  duty  of  a 
railroad  company,  when  it  furnishes  transportation  to  its 
employes  in  cars  from  one  point  of  its  road  to  another,  to 
provide  a  reasonably  well  constructed  and  safe  track,  to 
furnish  well  constructed  and  safe  cars  for  the  use  of  such 
employes,  and  to  exercise  continued  supervision  over  the 
same,  and  keep  them  in  good  and  safe  repair  and  condi- 
tion; and  if  it  fail  to  do  so,  and  suffers  its  track  or  its 
cars  from  any  cause  to  become  dangerous  and  unsafe,  and 
this  condition  is  known  to  the  company,  or  to  any  servant 
to  whom  it  may  have  delegated  the  performance  of  these 
duties,  or  might  have  become  known  to  it  or  to  such 
servant  by  the  exercise  of  reasonable  care  and  diligence, 
and  injury  results  to  one  of  its  servants,  not  having  such 
delegated  power,  without  fault  on  his  part,  while  in  the 
performance  of  his  duty,  the  company  is  liable  for  dam- 
ages. Reese  v.  Railroad  Co.,  42  W.  Va.  336. 

d.  Ejecting  passengers  from  passenger  trains. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  in  this  case  that  the  conductor,  before  he 
removed  the  plaintiff  from  the  defendant's  car,  offered  to 

carry  the  plaintiff  from  -    -  to ,  if  the  plaintiff  would 

agree  to  afterwards  pay  him  the  fare  required  for  his 
transportation,  and  that  the  plaintiff  refused  to  accept 
said  offer  of  said  conductor,  and  thereupon  he  was  ejected 
by  said  conductor  from  the  train,  that  in  such  case,  al- 
though the  jury  may  believe  that  the  plaintiff  was  wrong- 
fully removed  from  the  defendant's  car,  yet  the  plaintiff 


190  DAMAGES. 

can  not  recover  punitive  or  exemplary  damages,  but  can 
only  award  compensatory  damages,  if  any,  for  so  being 
put  off  the  train.  Moore  v.  Railroad  Co.,  41  W.  Va.  179. 

e.  Ejecting  persons  from  freight  trains. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  got  aboard  of  one  of  the 
-  railroad's  freight  trains  in  the  month  of  -  — ,  -  — , 
without  any  right  or  permission  to  do  so  from  the  de- 
fendant, or  any  of  its  employes,  and  was  a  trespasser 
thereon ;  and  if  they  further  believe  from  the  evidence  that 
while  the  said  plaintiff  was  on  the  said  train  he  was 
kicked  or  forced  therefrom  by  an  order  or  command  given 
by  the  conductor  on  said  train,  and  while  said  train  was 
in  motion,  and  moving  at  a  rate  of  speed  rendering  it 
unsafe  or  dangerous  to  eject  the  said  plaintiff  by  force  or 
violence  therefrom;  and  if  they  further  believe  that  said 
plaintiff  was  ejected  by  force  or  violence  from  said  train 
by  the  order  or  command  of  the  conductor  thereof,  and 
that,  in  consequence  of  being  so  ejected  from  said  train, 
said  plaintiff  sustained  any  physical  injuries,  then  the 
jury  should  find  for  the  plaintiff  and  assess  his  damages 
at  such  sum  as  will  be  commensurate  with  such  injuries, 
not  exceeding,  however,  the  sum  sued  for  in  this  action. 
Landers  v.  Railroad  Co.,  46  W.  Va.  497. 

f.  Same — Use  of  needless  force  in. 

The  court  instructs  the  jury  that  in  the  absence  of  proof 
to  the  contrary,  the  power  or  authority  to  eject  any  and 
all  trespassers  from  the  freight  train  upon  which  the 
plaintiff  was  attempting  to  ride,  after  the  train  had  been 
signalled  to  leave  the  yard  at  -  -  by  the  conductor,  and 

was  in  motion,  and  going ,  on  the  main  track  on  its 

regular  trip,  and  upon  which  said  conductor  had  taken 
his  position,  belonging  to  the  conductor  thereof,  as  such 


DAMAGES.  191 

conductor  he  could  not  exercise  this  power  or  authority  so 
as  to  needlessly  or  wantonly  to  cause  injury  to  another, 
even  to  a  trespasser  on  his  train;  and  if  the  jury  believe 
from  the  evidence  that  such  conductor  did  exercise  such 
power  or  authority  by  commanding  or  ordering  the  said 
plaintiff  to  be  kicked  or  forced  from  said  train  while  the 
said  train  was  going  at  such  a  rate  of  speed  as  to  make 
it  unsafe  or  dangerous  to  life  or  limb  to  thus  eject  said 
plaintiff  from  the  said  train,  and  if  the  jury  further  be- 
lieve from  the  evidence  that  said  plaintiff  was  so  forced  or 
ejected  from  said  train,  and  thereby  and  in  consequence 
thereof,  sustained  personal  and  physical  injury,  the  jury 
are  authorized,  under  such  circumstances,  to  find  a  ver- 
dict for  the  plaintiff,  and  to  assess  his  damages  at  such 
sum  as  the  evidence  may  justify.  Landers  v.  Railroad 
Co.,  46  W.  Va.  498. 

g.     Unlawful  combinations — Liability  of  persons  acting 

under. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  -   — ,  -   — ,  -   — ,  -   — , and  - 

combined  for  an  unlawful  purpose,  and  in  the  execution  of 
that  purpose,  as  a  consequence  of  that  unlawful  combina- 
tion, the  plaintiff  was  arrested  without  probable  cause, 
and  imprisoned  by  any  of  the  defendants,  the  law  is  for 
the  plaintiff,  with  the  plea  of  not  guilty,  and  they  must 
find  for  him  such  damages  as  they,  in  their  discretion,  may 
deem  proper,  not  exceeding  the  amount  laid  in  the  writ. 
Bloss  v.  Plymale,  3  W.  Ya.  399. 

h.    Diversion  of  stream  of  surface  water — Encroachment 

of  stream  upon  property  of  land  owner. 
The  court  instructs  the  jury  that  in  repairing,  main- 
taining or  replacing  the  bank  of  the  run  next  his  -       — , 
the  defendant  has  no  right  to  change  or  narrow  the  natur- 


1<)2  DAMAGES. 

al  course  of  the  run  so  as  to  cause  it  to  encroach  upon 
the  property  of  the  plaintiff,  or  to  wash  away  his  ground ; 
and  if  the  jury  believe  from  the  evidence  that  in  maintain- 
ing, repairing  or  replacing  said  bank,  he  has  so  narrowed 
or  changed  the  natural  course  of  said  run,  he  is  liable  for 
any  damages  thereby  occasioned.  Hargreavca  v.  Kimberly, 
26  W.  Va.  791. 

i.    Defective    plumbing  —  Injury   to    tenant's    property 

caused  by. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  was  a  tenant  of  the  defend- 
ant, and  that  in  consequence  of  the  defective  plumbing 
or  want  of  repairs,  or  negligence  of  the  defendant,  the 
plaintiff  suffered  an  injury  to  his  property  without  any 
fault  of  his  own,  then  the  plaintiff  is  entitled  to  recover 
damages  for  the  injury  sustained  in  consequence  thereof. 
Michaelson  v.  Cautley,  45  W.  Va.  534. 

j.     Changing  grades  of  streets. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  purchased  the  lot  in  the  dec- 
laration mentioned  and  built  his  residence  thereon,  and 
that  the  lot  abutted  on  the  -  -  turnpike,  and  when  so 
purchased  and  built  upon,  it  was  out  of  the  limits  of 
— ,  but  that  the  limits  of  -  -  were  subsequently 
extended  so  as  to  include  this  lot,  and  that  the  defend- 
ant in  improving  -  -  street,  formerly  the  —  -  turn- 
pike, to  the  entire  width  thereof  and  close  up  to  the  line 
of  the  plaintiff's  lot  inflicted  damage  on  the  plaintiff,  then 
it  is  immaterial  whether  the  grade  of  the  -  -  turn- 
juke  on  that  portion  of  it  which  was  graded  at  the  time 
of  the  plaintiff's  purchase  of  this  lot,  was  materially  al- 
tered or  not,  or  whether  it  was  widened  out  to  or  near  the 
plaintiff's  line  at  substantially  the  same  grade,  as  existed 
on  the  graded  portion  of  the  -  —  turnpike,  as  it  had 


DAMAGES.  193 

existed  before,  or  whether  this  grade  in  this  widening  was 
changed,  provided  the  change  made  in  improving  this 
street  by  the  defendant  was  such  as  to  interrupt  the 
plaintiff  in  the  possession  and  enjoyment  of  his  property. 
For  if  this  was  the  case,  or  the  plaintiff  was  obstructed 
in  his  mode  of  ingress  and  egress  to  and  from  his  prop- 
erty, he  is  entitled  to  recover  such  damages,  as  you  may 
find  from  the  evidence  he  has  sustained  by  reason  there- 
of, and  it  makes  no  difference  whether  the  old  grade  of  the 
-  turnpike  was  changed  or  not,  the  question  for  the 
jury  is  'Did  what  the  defendant  performed  in  improving 
this  street  damage  the  property  of  the  plaintiff?'  If  so, 
he  is  entitled  to  recover.  Hutchinson  v.  Par  Jeer  sburg,  25 
W.  Va.  238. 

k.    Lease  of  land  for  specified  use — Risks  assumed  by 

lessor — When  lessee  liable. 

The  court  instructs  the  jury  that  any  person  leasing 
property  for  a  specified  use,  in  the  absence  of  an  express 
covenant  to  the  contrary,  assumes  the  risk  of  the  ordinary 
wear  and  tear  of  such  property  resulting  from  such  use, 
and  the  said  lessee  is  not  liable  for  damages  to  said  prop- 
erty resulting  from  such  use,  unless  caused  by  his  wrong- 
ful or  neglectful  act.  Rogers  v.  Boom  Co.,  39  W.  Va.  275. 

1.    Permanent  injury  to  real  estate  by  railroad  company 

— Depreciation  in  value  caused  by. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  property  of  the  plaintiff  has  been 
permanently  injured  and  its  value  depreciated  by  the 
laying  and  construction  of  the  embankment  and  railroad 
track,  and  that  the  defendant  constructed  and  laid,  or 
had  constructed  and  laid  by  its  agents,  the  said  embank- 
ment and  track,  then  the  plaintiff  is  entitled  to  recover 
for  damages.  Hast  v.  Railroad  Co.,  52  W.  Va.  402. 


1{)4  DAMAGES. 

m.    Delay  in  sawing  timber. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  began  the  work  of  sawing 
the  lumber  and  ties  for  the  defendants  under  and  by  virtue 
of  the  contract  read  in  evidence  to  the  jury,  bearing  date 
— ,  some  time  in  the  latter  part  of  -  — ,  19 — ,  and 
that  such  mill  had  a  capacity  to  saw  from  -  -  to 
-  feet  of  lumber  per  day,  and  if  the  jury  further  be- 
lieve from  the  evidence  that  by  steadily  running  said  mill 
the  plaintiff  could  have  sawed  all  the  lumber  and  ties 
charged  by  the  plaintiff  against  the  defendants  specified 
in  his  bill  of  particulars  or  account,  filed  with  his  declara- 
tion in  this  cause  on  or  before  —  — ,  19 — ,  except  any  un- 
avoidable accident  occurring  during  that  period,  and  if 
the  jury  further  believe  from  the  evidence  that  a  failure 
to  saw  the  lumber  and  ties  for  the  defendants  charged  in 
said  account  during  said  period,  occasioned  the  defend- 
ants any  loss  or  damage  as  specified  in  their  special  plea 
filed  in  this  cause,  then  the  jury  are  instructed  that  they 
may  ascertain  from  the  evidence  what  such  loss  or  dam- 
ages amount  to  and  allow  and  assess  them  in  favor  of  the 
defendants.  Vale  v.  Suitor  &  Duribar,  58  W.  Va. . 

n.  Injury  to  water  mill  by  construction  and  use  of  boom. 
The  court  instructs  the  jury  that  if  by  a  fair  preponder- 
ance of  the  evidence  the  plaintiff  has  proved  that  the  de- 
fendant's boom  has  caused  the  water*  to  be  slackened  or 
deadened  so  as  to  cause  sand  or  sediment  to  settle  in  the 
river  below  the  plaintiff's  mill,  and  that  such  settling  of 
the  sand  or  sediment  has  caused  the  injury  complained  of 
in  the  plaintiff's  declaration,  then  the  jury  should  find 
for  the  plaintiff  such  damages  as  he  has  sustained  during 
the  five  years  next  preceding  the  institution  of  this  suit. 
Pickens  v.  Boom  Co.,  58  W.  Va. . 

o.    Mitigation  of  damages. 

The  court  instructs  the  jury  that  if  they  believe  from 


DAMAGES.  195 

the  evidence  that  plaintiff  has  negligently  permitted 
gravel,  mud,  sand  &c.,  to  accumulate  in  the  mill  race  at 
the  mouth  of  the  branch  or  at  any  other  points,  or  that 
he  has  been  guilty  of  any  other  negligent  act  whereby  the 
supply  of  water  to  his  mill  has  been  diminished,  such 
negligence  can  only  be  considered  in  fixing  the  amount  of 
plaintiff's  damages,  and  does  not  excuse  defendant  from 
performing  its  covenants  of  -  — ,  18 — .  Hurxthall  v. 
Boom  Co.,  53  W.  Va.  101. 

(See,  also,  Vinal  v.  Care,  18  W.  Va.  4.) 

II.     EXEMPLARY,     PUNITIVE     OR     VINDICTIVE 
DAMAGES. 

• 

a.  Sale  of  intoxicating  liquors  to  minors — Exemplary 

damages  defined. 

b.  Unlawful  sale  of  intoxicating  liquors  to  husband. 

c.  Same. 

d.  Physical  and  mental  suffering — Hazardous  obstruc- 

tions near  railroad  track. 

e.  Physical  suffering — Same. 

f.  Physical  and  mental  suffering — Injuries  sustained 

while  attempting  to  board  street  car — Inability 
to  bear  children. 

g.  Same  —  How  damages  estimated  —  Contingent  or 

speculative  damages. 

h.     Same — Injuries  caused  by  defective  sidewalks — Loss 
of  time — Expenses  incurred — Permanent  injuries, 
i.     Same, 
j.     Same, 
k.     Same — Liability  of  owner  of  saw  mill  for  injuries 

sustained  by  employe. 
1.     Same— Displaced  telephone  wires — Injuries  caused 

by. 

m.     Same — Malicious    prosecutions — Injuries    to    feel- 
ings, person  and  character. 


196  DAMAGES. 

n.  Same — False  arrest — Outrage,  indignity  and  hu- 
miliation put  upon  party. 

o.  Same — Seduction  of  minor  daughter — Shame,  loss 
of  respect  and  mortification  of  parent. 

p.     Same — Explosion  of  dynamite — Injuries  caused  by. 

q.     Same — Assault  and  battery. 

a.  Sale   of   intoxicating   liquors   to    minor — Exemplary 

damages  defined. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  preponderance  of  the  evidence  that  the  plaintiff  is  the 
mother  of  -  — ,  that  he  is  a  minor,  and  that  the  defend- 
ant, by  himself  or  his  clerk,  or  any  one  acting  under  his 
authority,  unlawfully  sold  to  the  said  -  — ,  on  the  - 
day  of  -  — ,  18 ,  at  the  defendant's  place  of  busi- 
ness, at  -  — ,  in  this  county,  intoxicating  liquors,  and 
that  the  said  intoxicating  liquors,  in  whole  or  in  part, 
caused  the  intoxication  of  said  -  — ,  and  that  by  reason 
of  such  intoxication  the  plaintiff  was  injured,  in  person 
or  means  of  support,  in  manner  and  form  as  in  the  decla- 
ration alleged,  then  the  jury  should  find  for  the  plaintiff, 
and  assess  in  her  favor  such  damages  as  the  jury  should 
find  from  the  evidence  she  has  sustained  by  reason  of  such 
intoxication,  and  also  exemplary  damages,  but  not  ex- 
ceeding together  -  -  dollars.  By  "exemplary  dam- 
ages" is  meant  such  damages  as  should  be  inflicted  upon 
a  wrongdoer  as  a  warning  to  him  and  others  to  prevent  a 
repitition  or  commission  of  similar  wrongs.  McMaster 
v.  Dyer,  44  W.  Va.  646. 

b.  Unlawful  sale  of  intoxicating  liquors  to  husband. 
The  court  instructs  the  jury,  that  if  the  jury  believe 

from  the  evidence  that  the  plaintiff  was  injured  in  her 
means  of  support  in  consequence  of  the  intoxication,  habit- 
ual or  otherwise,  of  her  husband,  caused  in  whole  or  in 
part  by  the  unlawful  selling  or  giving  of  intoxicating  liq- 


DAMAGES.  197 

uors  to  him  by  -  — ,  they  shall  find  for  the  plaintiff  for 
all  damages  sustained  and  for  exemplary  damages. 
Mayer  v.  Frobe,  40  W.  Va.  246-258,  overruling  Pegram  v. 
Stortz,  31  W.  Va.  220. 

c.  Same. 

The  court  instructs  the  jury  that  if  they  be- 
lieve from  the  evidence  that  —  sold  or  gave 
to  the  plaintiff's  husband  intoxicating  liquors  when  they 
knew  or  had  reason  to  believe  such  husband  was  a  person 
in  the  habit  of  drinking  to  intoxication,  such  selling  or 
giving  was  unlawful.  And  if  they  further  believe  that  by 
reason  of  intoxication,  in  whole  or  in  part,  of  said  hus- 
band, resulting  from  such  sale  of  intoxicating  liquors,  the 
said  husband  did  not  provide  for  and  support  the  plaintiff, 
your  verdict  should  be  for  the  plaintiff  for  all  damages 
sustained  and  for  exemplary  damages.  Mayer  v.  Frobe, 
40  W.  Va,  246-258. 

d.  Physical  and  mental  suffering — Hazardous  obstruc- 

tions near  railroad  track. 

The  court  instructs  the  jury  that  if  they  find  the  de- 
fendant guilty,  they  are,  in  estimating  the  damage,  at 
liberty  to  consider  the  health  and  condition  of  the  plain- 
tiff before  the  injury  complained  of  as  compared  with  his 
present  condition  in  consequence  of  said  injuries,  and 
whether  said  injury  is,  in  its  nature,  permanent,  and 
how  far  said  injury  is  calculated  to  disable  the  plaintiff 
from  engaging  in  those  pursuits  and  employments  for 
which  in  the  absence  of  said  injury  he  would  have  been 
qualified,  and  also  the  physical  and  mental  suffering  to 
which  he  was  subjected  or  may  be  subjected  by  reason 
of  said  injuries,  and  to  allow  such  damages  as  in  the 
opinion  of  the  jury  will  be  a  fair  and  just  compensation 
for  the  injury  which  the  plaintiff  has  sustained.  Riley 
v.  Railroad  Co.,  27  W.  Va.  151. 


198  DAMAGES. 

e    Physical  suffering — Same. 

The  court  instructs  the  jury  that  if  they  find  for  the 
plaintiff  they  are,  in  estimating  the  damages,  at  liberty 
to  consider  the  health  and  condition  of  the  plaintiff  before 
the  injury  as  compared  with  his  present  condition  in  con- 
sequence of  said  injury;  and  also  whether  said  injury 
was  permanent  in  its  nature,  and  how  far  it  is  calculated 
to  disable  the  plaintiff  from  engaging  in  those  pursuits 
and  occupations  which,  in  the  absence  of  said  injury,  he 
would  have  been  qualified,  and  also  the  physical  suffering 
to  which  he  was  subjected  by  reason  of  said  injury,  and  to 
allow  such  damages  as,  in  the  opinion  of  the  jury,  will 
be  a  fair  and  just  pecuniary  compensation  for  the  injury 
which  the  plaintiff  has  sustained.  The  jury  may  include 
any  losses  that  may  occur  in  the  future  to  the  plaintiff, 
provided  they  are  such  as  the  jury  believe  from  the  evi- 
dence will  actually  result  to  the  plaintiff  as  the  proximate 
damages  from  the  wrongful  act  complained  of.  Carrico  v. 
Railway  Co.,  39  W.  Va.  102. 

f.  Physical  and  mental  suffering — Injuries  sustained 
while  attempting  to  board  street  car — Inability  to 
bear  children. 

The  court  instructs  the  jury  that  if  under  the  evidence 
they  find  the  defendant  guilty  as  in  the  declaration  alleged, 
then  in  estimating  the  damage  of  the  plaintiff  they 
have  the  right  to  take  into  consideration  the  personal 
injuries  inflicted  upon  the  plaintiff  in  consequence  of  the 
defendant's  wrongful  acts,  if  any  such  injuries  are  proved, 
and  the  pain  and  suffering,  both  mental  and  physical, 
undergone  by  her  in  consequence  of  such  injuries,  if  such 
pain  and  suffering  have  been  proved,  and  if  they  further 
believe  from  the  evidence  that  the  said  injuries  are  per- 
manent, and  that  they  include  an  inability  to  have  any 
child  or  children,  these  facts  may  also  be  included  in  their 
estimate,  if  they  further  believe  from  the  evidence  that 


DAMAGES.  •  199 

such  permanent  injury,  including  such  inability,  resulted 
from  such  wrongful  acts.  Normile  v.  Traction  Co.,  57 
W.  Va.  132. 

g.    Same — How  damages  estimated — Contingent  or  specu- 
lative damages. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant's  negligence  was  the  cause 
of  the  injury,  they  will  find  for  the  plaintiff  and  in  esti- 
mating damages  will  allow  for  pecuniary  loss  incurred  by 
the  plaintiff,  as  the  result  of  such  injury,  and  for  her 
pain  and  suffering  directly  resulting  from  the  injury.  In 
estimating  damages,  they  may  also  allow  for  future  con- 
sequences, but  can  only  allow  for  such  future  consequences 
as  they  believe  from  the  evidence  as  are  reasonably  certain 
to  be  sustained  by  the  plaintiff.  The  consequences  which 
are  contingent,  speculative  or  merely  possible  are  not  to 
be  considered  in  ascertaining  the  damages.  Normile  v. 
Traction  Co.,  57  W.  Va.  132. 

h.    Same — Injuries  caused  by  defective  sidewalks — Loss 

of  time — Expenses  incurred — Permanent  injuries. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  was  injured  as  charged  in 
his  declaration,  then  the  rule  for  the  measurement  of 
damages  is  substantially  that  the  plaintiff's  damages 
must  be  measured  by  the  loss  of  time  during  the  cure  of 
such  injury  or  injuries,  and  the  expenses  incurred  in 
respect  thereto,  the  pain  and  suffering  undergone  by  the 
plaintiff,  and  any  permanent  injury,  especially  when  it 
causes  a  disability  for  further  exertion,  in  whole  or  in 
part,  and  consequent  pecuniary  loss.  Bowen  v.  City  of 
Huntington,  35  W.  Va.  698. 

i.    Same. 

The  court  instructs  the  jury  that  if  they  find  for  the 


o()0   •  DAMAGES. 

plaintiff,  that  then  the  plaintiff  is  entitled  to  recover  all 
damages  proved  by  him  as  caused  by  the  alleged  injury, 
and  that  in  estimating  his  damages  they  will  consider  the 
evidence  in  relation  to  plaintiff's  loss  of  time  occasioned 
by  his  injury;  also  the  evidence  in  relation  to  his  pain 
and  suffering  resulting  from  such  injury,  and  the  evi- 
dence in  relation  to  the  extent  and  permancy  of  said 
injury.  Phillips  v.  City  of  Huntington,  35  W.  Va.  408. 

j.     Same. 

The  court  instructs  the  jury  that  if  they  find  for  the 
plaintiff,  the  rule  for  measuring  her  damages  in  this  case 
is  substantially  that  the  damages  awarded  her  should 
compensate  her  for  her  loss  of  time  brought  about  by  such 
injury,  and  the  expenses  incurred  in  respect  thereto,  her 
pain  and  suffering  consequent  thereon,  and  any  perman- 
ent injury,  especially  if  it  causes  a  disability  for  further 
exertion,  either  in  whole  or  in  part,  and  consequent 
pecuniary  loss.  Snoddy  v.  City  of  Huntington,  37  W.  Va. 
114. 

k.     Same — Liability  of  saw  mill  owner  for  injuries  sus- 
tained by  employe. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  in  his  action  is  entitled  to 
recover,  he  may  recover  the  expenses  of  his  cure,  the  value 
of  his  time  lost  during  his  cure,  and  a  fair  compensation 
for  his  physical  and  mental  suffering  caused  by  the  injury 
as  well  as  any  permanent  reduction  of  his  power  to  earn 
money.  Giebell  v.  Collins  Co.,  54  W.  Va.  525. 

1.  Same — Displaced  telephone  wire — Injuries  caused  by. 
The  court  instructs  the  jury  that  if  they  find  the  issue 
for  the  plaintiff,  in  determining  the  measure  of  damages 
they  may  take  into  consideration  the  mental  and  physical 
pain  and  suffering  endured  by  the  plaintiff  since  he  re- 


DAMAGES.  201 

ceived  the  injury  complained  of,  the  character  and  extent 
of  such  injury,  and  its  continuance  if  permanent,  together 
with  his  loss  of  time,  service  and  disability,  if  any,  result- 
ing from  said  injury,  to  earn  a  livelihood  for  himself  and 
family,  and  his  necessary  expense  for  medicine  and  medi- 
cal attention;  and  may  find  for  him  such  sum  as,  in  the 
judgment  of  the  jury  under  the  evidence,  will  be  a  fair 
compensation  for  the  injury.  Hannum  v.  Hill,  52  W.  Va. 
176. 

m.     Same — Malicious  prosecutions — Prosecutions  without 

probable  cause — Malice  express  or  implied. 
The  court  instructs  the  jury  that  although  no  actual 
damages  may  have  been  proven  by  the  plaintiff  as  to 
actual  attorney  fees  and  expenses  about  his  defense  in  the 
prosecution  commenced  or  pursued  against  him  by  the 
defendant,  and  although  he  may  have  proven  no  actual 
damages  for  loss  of  time  because  of  the  prosecution 
against  him,  but  of  all  this  the  jury  are  to  judge  from  the 
evidence  in  the  case,  yet  the  jury  may  give  such  damages 
as  they  may  think  proper,  for  the  injury  to  the  plaintiff's 
feelings,  person  and  character,  by  his  detention  in  custody 
and  prosecution,  if  they  believe  from  the  evidence  that 
there  was  a  prosecution  commenced  or  pursued  against 
him  by  the  defendant  and  that  said  prosecution  was  insti- 
gated by  the  defendant  without  probable  cause  therefor, 
and  with  malice  express  or  implied  from  the  want  of 
probable  cause,  and  that  the  prosecution  was  conducted 
to  its  termination  to  the  final  discharge  of  the  plaintiff, 
without  proof  as  to  the  amount  of  such  damages,  and  the 
jury  may  give  such  punitive  or  exemplary  damages  as 
they  may  think  proper  for  the  conduct  of  the  defendant,  if 
they  believe  from  the  evidence  in  the  case  that  the  said 
prosecution  against  the  plaintiff  was  commenced  or  pur- 
sued for  the  private  ends  of  the  defendant,  or  if  they  be- 
lieve from  the  evidence  that  said  prosecution  was  com- 


202  DAMAGES. 

menced  or  pursued  with  reckless  disregard  of  the  rights 
of  the  plaintiff,  and  may  assess  such  damages  without 
proof  as  to  the  amount  thereof,  the  amount  not  to  exceed 
that  laid  in  the  declaration.  Waldron  v.  Sperry,  53  W. 
Va.  122. 

n.    Same — False  arrest — Outrage,  indignity  and  humilia- 
tion put  upon  party. 

The  court  instructs  the  jury  that  if  they  find  the  de- 
fendant guilty,  they  are,  in  estimating  the  plaintiff's  dam- 
ages, at  liberty  to  consider  the  expense  and  loss  of  time, 
if  any,  incurred  by  the  plaintiff;  also  the  bodily  and 
mental  pain  and  anguish  resulting  from  the  defendant's 
acts  as  proved;  and  for  the  outrage  and  indignity  and 
humiliation  put  upon  the  plaintiff,  to  allow  such  damages 
as,  in  the  opinion  of  the  jury,  will  be  a  fair  and  just  com- 
pensation for  the  injuries  sustained,  not  exceeding  the 
amount  sued  for  herein.  Gillingham  v.  Railroad  Co.,  35 
W.  Va.  602. 

o.     Same — Seduction  of  minor  daughter — Shame,  loss  of 

respect  and  mortification  of  parent. 
The  court  instructs  the  jury  that  if  they  believe  from, 
the  evidence  that  the  plaintiff  did  sustain  loss  of  services 
of  his  daughter,  and  that  such  loss  of  services  was  occa- 
sioned by  the  seduction  and  wrongful  act  of  the  defend- 
ant, then  you  may  take  into  consideration  the  shame,  loss 
of  respect  and  mortified  feeling  of  the  plaintiff,  and  give 
such  exemplary  damages  as  you  may  believe  the  plaintiff 
entitled  to.  Riddle  v.  McGinnis,  22  W.  Va.  262. 

p.    Same — Explosion  of  dynamite — Injuries  caused  by. 

The  court  instructs  the  jury  that  if  they  find  the  issue 
for  the  plaintiff,  in  determining  the  measure  of  damages 
they  may  take  into  consideration  the  mental  and  physical 
pain  and  suffering  endured  by  the  plaintiff  since  he  re- 


DAMAGES.  203 

ceived  the  injury  complained  of,  in  consequence  thereof, 
the  character  and  extent  of  such  injury,  and  its  contin- 
uance, if  permanent,  together  with  his  loss  of  time  and 
service,  and  his  disability,  if  any,  resulting  from  said  in- 
jury to  earn  a  livelihood  for  himself  and  family,  and  his 
necessary  expenses  for  medicine  and  medical  attention; 
and  may  find  for  him  such  sum  as,  in  the  judgment  of  the 
jury  under  the  evidence,  will  be  a  fair  compensation  for 
the  injury,  not  to  exceed  the  amount  laid  in  the  declara- 
tion. Schwartz  \.  Schull,  45  W.  Va.  411. 

q.    Assault  and  battery. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  committed  an  assault  and 
battery  upon  the  plaintiff  as  alleged  in  the  declaration, 
and  that  she  is  entitled  to  recover,  then  in  determining 
the  amount  of  damages  they  are  authorized  to  take  into 
consideration  any  physical  injury,  if  any,  caused  thereby, 
as  well  as  any  physical  suffering,  if  any,  caused  thereby, 
and  all  such  punitive  or  exemplary  damages  as  they  may 
judge  proper  and  just  in  the  premises,  if  they  find  from 
the  evidence  that  the  assault  and  battery  was  wanton  or 
willful.  Stevens  v.  Friedman,  58  W.  Va.  — . 

III.     COMPENSATORY     DAMAGES  --  HOW     ESTI- 
MATED AND  FIXED. 

1.  AGAINST  RAILROAD  COMPANIES. 

2.  AGAINST    MUNICIPAL    CORPORATIONS. 

3.  AGAINST    MASTER    FOR    INJURIES    SUSTAINED    BY     SER- 

VANTS. 

4.  AGAINST   LANDLORDS. 

5.  AGAINST  STEAMBOAT  COMPANIES. 

6.  AGAINST  PERSONS  TAKING  PROPERTY  WITHOUT  OWNER'S 

CONSENT. 

7.  AGAINST  BRIDGE  COMPANIES. 


204  DAMAGES. 

8.  AGAINST   BOOM    COMPANIES. 

9.  AGAINST   PULP    MILL  OWNERS 

1.      AGAINST  RAILROAD  COMPANIES. 

a.  Delay  in  shipping  live  stock. 

b.  For  killing  live  stock. 

c.  For  negligently  causing  death  of  parent. 

d.  Same — Prospective  loss — Approximate  damages. 

e.  For  ejecting  passenger  from  train. 

f.  For  dismissing  employe. 

g.  For  injury  to  water  mill  by  constructing  embank- 

ments. 

h.     Taking  lands  without  owner's  consent — Future  in- 
jury— Permanent  injury. 

i.     Same — Market  value  of  property. 

j.     Same — What  not  to  be  considered. 

k.     Uses  to  which  land  to  be  put. 

a.  Delay  in  shipping  live  stock. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  there  was  such  unreasonable  delay  on 
the  part  of  the  defendant  or  its  servants  in  transporting 
said  cattle  to  the  city  of  -  — ,  they  should  find  for  the 
plaintiff;  and  if  they  further  believe  from  the  evidence 
that  the  plaintiff  was  damaged  by  said  delay,  in  assess- 
ing such  damages  they  should  take  into  consideration  all 
damages  naturally  and  proximately  resulting  from  such 
delay.  Bosley  v.  Railroad  Co.,  54  W.  Va.  571. 

b.  Killing  live  stock — Market  value  of  stock. 

The  court  instructs  the  jury  that  while  the  measure  of 
damages  is  the  value  of  the  stock  when  killed,  that  such 
value  is  the  market  value  of  such  stock,  and  not  some 
peculiar  or  particular  value  attached  to  it  by  the  plain- 
tiff. Bullington  v.  Railroad  Co.,  32  W.  Va.  440. 


DAMAGES.  205 

c.  For  negligently  causing  death  of  parent. 

The  court  instructs  the  jury  that  in  estimating  the 
pecuniary  damages  they  may  take  into  consideration  the 
nurture,  instruction  and  physical,  moral  and  intellectual 
training  which  the  children  would  have  received  from 
their  father.  Searles  \.  Railway  Co.,  32  W.  Va.  374. 

d.  Same — Prospective  damages — Approximate  damages. 
The  court  instructs  the  jury  that  while  they  must  assess 

the  damages  with  reference  to  the  pecuniary  injuries  sus- 
tained by  the  distributees  in  consequence  of  the  death  of 
their  father,  they  are  not  limited  to  the  loss  actually  sus- 
tained at  the  precise  period  of  his  death,  but  may  also  in- 
clude prospective  losses,  provided  they  are  such  as  the 
jury  believe  will  actually  result  to  the  distributees  as  the 
proximate  damages  arising  from  the  wrongful  death. 
Searles  v.  Railway  Co.,  32  W.  Va.  375. 

e.  For  ejecting  passenger  from  train. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  conductor  before  he  removed  the 
plaintiff  from  the  defendant's  car,  offered  to  carry  the 
plaintiff  from  -  —  to  -  — ,  if  the  plaintiff  would  after- 
wards agree  to  pay  him  the  fare  required  for  his  trans- 
portation, and  that  the  plaintiff  refused  to  accept  said 
offer  of  said  conductor,  and  thereupon  he  was  ejected  by 
said  conductor  from  said  train,  that  in  such  case,  al- 
though the  jury  may  believe  that  the  plaintiff  was  wrong- 
fully removed  from  the  defendant's  car,  yet  the  plaintiff 
cannot  recover  punitive  or  exemplary  damages,  but  can 
only  award  compensatory  damages,  if  any,  for  so  being 
put  off  the  train.  Moore  v.  Railroad  Co.,  41  W.  Va.  179. 

f .  Dismissing  employe — Duty  to  seek  other  employment. 
The  court  instructs  the  jury  that  if  a  person  is  hired 


206  DAMAGES. 

for  service  for  a  given  term  and  is  wrongfully  dismissed, 
the  law  imposed  upon  him  the  duty  to  seek  other  employ- 
ment, and  to  the  extent  that  he  obtains  it  and  earns 
wages,  or  might  have  done  so,  his  damages  are 
reduced.  Qrover  v.  Railroad  Co.,  53  W.  Va.  107. 

g.    Injury  to  water  mill  by  constructing  embankments — 

Burden  of  proof — Nominal  damages. 
The  court  instructs  the  jury  that  the  burden  is  upon 
the  plaintiff  to  prove  to  them  the  damages,  if  any,  which 
he  has  suffered  by  reason  of  the  alleged  wrongful  act  of 
the  defendant,  and  wherein  and  what  such  damages  are; 
and  if  the  plaintiff  has  failed  to  prove  any  damages,  al- 
though he  proves  the  wrongful  act  by  the  defendant  where- 
by his  water  power  was  diminished,  they  can  give  only 
nominal  damages.  Watts  v.  Railroad  Co.,  39  W.  Va.  208. 

h.  Land  taken  without  owners  consent — Future  or  pros- 
pective injury — Permanent  injury. 
The  court  instructs  the  jury  that  in  determining  this 
case  the  jury  are  not  to  take  into  consideration  any  future 
or  prospective  injury  or  damage  that  the  plaintiff  might 
sustain  by  reason  of  the  railroad  track  or  its  use  and 
operation  to  his  said  property,  but  they  may  take  into 
consideration  any  permanent  damages  to,  and  the  depre- 
ciation of  the  value  of,  his  said  property,  by  the  laying 
and  construction  of  said  track.  Fox  v.  Railroad  Co.,  34 
W.  Va.  478. 

i.    Same — Market  value  of  property. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence,  facts  and  circumstances  before  them  in  this 
proceeding  that  the  land  mentioned  and  described  in  the 
notice,  application  and  commissioners'  report  herein 
sought  to  be  taken  in  this  proceeding,  is  within  the  cor- 
porate limits  of  the  town  of ,  and  at  the  time  of  the 


DAMAGES.  207 

i 

proposed  taking  thereof  by  the  applicant,  had  a  market 
value,  then  such  market  value,  together  with  the  view  of 
the  premises,  would  be  the  proper  measure  of  compensa- 
tion to  be  allowed  by  the  jury  for  the  same.  Railway  Co. 
v.  Buskirk,  57  W.  Va.  417. 

j.    Same — What  not  to  be  considered. 

The  court  instructs  the  jury  that  in  ascertaining  what 
would  be  a  just  compensation  to  the  defendant  for  the 
land  proposed  to  be  taken  by  the  applicant,  as  set  forth 
in  the  notice,  application  and  commissioners'  report  in 
this  proceeding,  such  general  and  intangible  benefits  as 
have  accrued  to  this  property  in  common  with  all  other 
property  in  the  community  where  it  is  situate,  by  reason 
of  the  proposed  building  of  the  -  -  railroad  of  its  road 
into  said  community,  cannot  be  deducted  from  its  fair 
market  value,  if  they  find  it  has  such  value,  at  the  time 
the  same  was  proposed  to  be  taken  by  said  railroad  com- 
pany. Railway  Co.  v.  Buskirk,  57  W.  Va.  417. 

k.    Same — Uses  to  which  lands  taken  to  be  put. 

The  court  instructs  the  jury  that  in  ascertaining  the 
value  of  the  land  proposed  to  be  taken  by  the  -  -  rail- 
road company,  they  may  properly  enquire  into  its  value 

by  reason  of  its  being ,  but  in  considering  the  market 

value  of  the  land  they  must  not  consider  the  uses  to  which 
the  -  -  railroad  company  had  put,  or  may  put  this 
ground,  in  constructing  this  railroad.  Railroad  Co.  v. 
Sheppard,  26  W.  Va.  680. 

2.      AGAINST   MUNICIPAL  CORPORATIONS. 

a.  Injuries  caused  by  defective  sidewalks. 

b.  For  changing  grade  of  streets. 

c.  Same. 


!_>(  is  DAMAGES. 

a.  Injuries  caused  by  defective  sidewalks — Aggravated 

damages. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  was  afflicted  with  a  disease 
which  existed  at  the  time  of  the  alleged  injury,  which 
disease  was  aggravated  by  such  injury,  that  the  plaintiff, 
on  satisfactory  proof  of  the  existence  of  the  defect  in  the 
sidewalk  in  the  declaration  mentioned,  and  that  he  was 
injured  thereby,  is  entitled  to  full  compensatory  dam- 
ages. Botccn  v.  City  of  Huntington,  35  W.  Va.  698. 

b.  Injuries  to  property  caused  by  changing  grade  of 

street — "Just  compensation" — Definition  of. 
The  court  instructs  the  jury  that  by  the  words  "just 
compensation"  used  in  the  constitution,  which  shall  be 
paid  for  private  property  damaged  for  public  use,  means 
that  amount  of  money  that  will  place  the  party  in  as  good 
condition  as  she  was  before  the  injury  was  done,  such  a 
sum  of  money,  the  possession  whereof  will  be  equivalent 
to  all  the  loss,  injury  and  damage  suffered  by  the  party 
injured  in  consequence  of  the  action  of  the  defendant. 
Blair  v.  City  of  Charleston,  43  W.  Va.  73. 

c.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  city  of  -  -  has  injured  the  property 
of  the  plaintiff  without  her  consent  having  been  first  ob- 
tained, that  it  is  your  duty  to  ascertain  and  determine 
the  extent  of  said  injury,  and  by  your  verdict  compensate 
her  for  said  injury.  Blair  v.  City  of  Charleston,  43  W. 
Va.  73. 

3.      AGAINST     MASTER    FOR    INJURIES    SUSTAINED     BY     SER- 
VANTS. 

a.  Defective  material — Losses  resulting  to  distributees. 

b.  Dangerous  machinery. 


DAMAGES.  209 

a.  Defective  material — Losses  resulting  to  distributees — 

Nurture  and  training  of  children. 

The  court  instructs  the  jury  that  if  they  find  for  the 
plaintiff  the  damages  are  not  limited  to  the  losses  sus- 
tained at  the  precise  period  of  -  — 's  death,  but  may  in- 
clude prospective  losses  provided  they  are  such  as  the  jury 
believe  from  the  evidence  will  result  to  his  distributees  as 
the  proximate  damages  arising  from  the  wrongful  death, 
and  the  jury  may  take  into  consideration  in  estimating 
the  pecuniary  injury,  the  nurture,  instruction,  physical, 
moral  and  intellectual  training  which  the  children  would 
have  received  from  their  father,  and  as  a  whole  assess 
such  damages  as  in  the  opinion  of  the  jury  will  be  fair  and 

just,  not  exceeding  in  amount,  $ .    Richards  v.  Iron 

Works,  56  W.  Va.  519. 

b.  Dangerous  machinery — Injuries  caused  by — Duty  of 

master  to  give  notice  and  instructions  as  to. 
The  court  instructs  the  jury  that  it  is  the  duty  of  the 
master  who  sets  a  servant  to  work  in  a  place  of  danger 
or  with  dangerous  machinery  or  appliances,  to  give  such 
notice  and  instructions  as  are  reasonably  required  by  the 
youth,  inexperience  or  want  of  capacity  of  the  servant; 
and  failing  to  do  so,  the  master  is  liable  for  the  damage 
suffered  through  such  failure.  Giebell  v.  Collins  Co.,  54 
W.  Va.  525. 

4.      AGAINST  LANDLORDS. 

a.    Defective  plumbing — Injury  to  tenant  caused  by — 

Condition  of  property  before  and  after  injury. 
The  court  instructs  the  jury  that  if  they  find  that  the 
defendant  is  liable  to  the  plaintiff,  that  the  measure  of 
damages  for  the  injury  done  is  that  amount  that  will  com- 
pensate and  make  the  plaintiff  whole, — the  difference  in 
value  of  the  property  injured  between  that  which  was  im- 


210  DAMAGES. 

mediately  before  the  injury  done,  and  that  afterwards. 
Michaelsonv.  Cautley,  45  W.  Va.  534. 

5.  AGAINST  STEAMBOAT  COMPANIES. 

a.    Loss'  of  goods  by  sinking  of  barge — Contract  price  of 

sale  of  goods  the  measure  of  damages. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  had  sold  the  salt,  the  loss 
of  which  is  in  controversy,  at  a  stipulated  contract  price, 
then  that  price  should  be  the  measure  of  damages  so  far 
as  the  value  of  the  salt  may  be  concerned.  Tompkins  v. 
Kanawha  Board,  21  W.  Va.  232. 

6.  AGAINST    PERSON    FOB   TAKING    PROPERTY     WITHOUT 

OWNER'S  CONSENT. 

a.    Possession  of  property  taken — Damages  to  owner  for 

taking  property  without  his  consent. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  purchased  of  the  defendant, 
the  property  in  the  declaration  mentioned,  and  that  he 
paid  him  for  the  same,  and  that  said  property  was  de- 
livered to  him,  and  afterwards  came  into  the  possession 
of  the  defendant,  without  the  consent  of  the  plaintiff,  then 
the  plaintiff  is  entitled  to  recover  in  this  action  so  much 
damage  as  the  jury  may,  from  the  evidence,  be  satisfied 
the  plaintiff  has  sustained.  Haines  v.  Cochran,  26  W. 
Va.  723. 

7.  AGAINST  BRIDGE  COMPANY. 

a.  For  injury  to  ferry  franchise. 

b.  Same — Expenditure  to  be  deducted. 

c.  Same. 


DAMAGES.  211 

a.  Injury  to  ferry  franchise— Amount  of  travel  and  reve- 

nue from — Inconveniences  of  the  public. 
The  court  instructs  the  jury  that  in  forming  their  judg- 
ment of  the  damage  to  the  said  franchise  of  the  plaintiff, 
when  run  within  the  limits  authorized  by  the  county  court 

of ,  and  from  landing  which  the  plaintiff  has  the  legal 

right  to  use,  they  are  at  liberty  to  consider,  as  evidence, 
such  revenues  as  tend  to  show  the  amount  of  travel  seek- 
ing passage  across  the  river  at  that  point,  and  the  value 
of  such  travel  to  one  holding  the  exclusive  privilege  to 
charge  for  transporting  the  same  over  the  river  by  means 
of  a  ferry  located  as  provided  in  the  order  of  the  county 
court;  and  on  the  other  hand  they  are  at  liberty  to  con- 
sider the  peculiar  risk,  disadvantages  and  inconveniences 
to  the  public,  if  any,  from  the  location  of  the  landings 
within  the  limits  of  the  order  of  the  county  court  as  tend- 
ing to  affect  or  diminish  the  said  travel,  or  the  value  of 
the  same,  to  the  said  ferry-franchise  so  located.  Mason  v. 
Bridge  Co.,  20  W.  Va.  233. 

b.  Same  —  Expenditures    to    be    deducted  —  Unsuitable 

grades  for  ferry  landing. 
The  court  instructs  the  jury  that  although  they  may 

find  from  the  evidence  that  at  the  mouth  of  grade 

and  -  -  road  the  condition  of  the  river  and  bank  is  not 
at  present  suitable  for  a  safe  and  convenient  landing  for 
the  ferry  of  plaintiff,  yet  if  they  further  find  that  said 
place,  or  within  fifty  yards  thereof,  and  upon  land  owned 
or  contracted  for  by  the  plaintiff  can  be  made  a  safe  and 
convenient  landing  by  the  expenditure  of  a  certain 
amount  of  money,  they  must  find  for  the  plaintiff  such 
damages  as  they  may  ascertain  his  ferry-franchise  has  sus- 
tained by  reason  of  the  erection  and  use  by  the  public  of 
the  bridge  of  the  defendant,  to  be  credited  by  the  cost  of 
rendering  said  river  and  banks  convenient  and  safe  for 
the  use  of  the  ferry.  Mason  v.  Bridge  Co.,  20  W.  Va.  236. 


212  DAMAGES. 

c.    Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  has  established  a  ferry  over 
the  -  -  river  at  the  points  and  between  the  limits  pre- 
scribed in  the  order  of  the  county  court  of  -  -  granting 
such  license  to  said  plaintiff  to  establish  such  ferry,  and 
that  said  plaintiff  owns  or  has  contracted  for  the  use  of 
landings  on  both  sides  of  the  river  within  the  limits  pre- 
scribed in  said  order  of  the  county  court,  then,  even  if 
they  find  that  said  plaintiff  may  have  to  expend  further 
sums  to  make  a  proper  channel  for  his  boat  across  the 
river  and  suitable  landings  for  his  ferry  boats  on  either 
side  of  the  river  on  said  land  so  owned  or  contracted  for 
by  him,  they  will  only  deduct  such  necessary  expendi- 
tures from  the  amount  assessed  as  damages  to  plaintiff's 
franchise  by  the  erection  and  opening  of  defendant's 
bridge.  Mason  v.  Bridge  Co.,  20  W.  Va.  237. 

8.      AGAINST  BOOM  COMPANIES. 

a.  Slackening  water  power  by  causing  sediment  in  stream 
— Rental  value  of  property  damaged — Statute  of 
limitations. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that,  during  the  five  years  next  preceding 
the  institution  of  this  suit,  the  erection,  location  or  opera- 
tion of  said  boom  caused  sand  or  sediment  to  settle  in 
-  river  below  the  plaintiff's  mill,  and  that  such  settling 
of  the  sand  or  sediment  had  the  effect  to  reduce  the  power 
of  the  fall  and  dam  at  plaintiff's  mill,  and  that  by  reason 
thereof  the  said  mill  was  prevented  from  running  during 
any  part  of  said  five  years  next  preceding  the  institution 
of  this  suit,  then  the  jury  should  find  for  the  plaintiff 
such  damages  as  he  has  sustained  by  reason  of  the  stop- 
ping of  the  mill  for  said  cause,  and  such  damages  should 
be  a  sum  equivalent  to  the  rental  value  of  said  mill  for 


DEEDS.  213 

the  time,  if  any,  that  the  mill  was  stopped  by  reason  of 
said  reduction  of  said  power.  Pickens  v.  Boom  Co.,  58 
W.  Va.  — . 

9.      AGAINST  PULP   MILL  OWNERS. 

a.    Injury  to  water  mill  by  construction  of  dams  and 

gates. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  has,  in  the  manner  alleged 
in  the  declaration,  unlawfully  injured  the  property  of  the 
plaintiff,  and  that  such  damage  and  injury  are  of  a  perma- 
nent character,  and  affects  the  value  of  plintiff's  property, 
then  they  will  find  for  the  plaintiff  a  sufficient  amount  as 
will  be  a  full  compensation  for  such  permanent  injury. 
Miller  v.  Pulp  Co.,  38  W.  Va.  560. 

[NOTE. — In  addition  to  the  foregoing,  instructions  em- 
bodying general  principles  relating  to  damages  will  be 
found  under  appropriate  subjects,  and  in  rare  instances, 
in  order  to  avoid  disconnection  of  subject  matter,  instruc- 
tions here  given,  are  repeated.] 


CHAPTER  23. 
DEEDS. 

a.  Compentency  to  execute  deeds — Mental  capacity. 

b.  Defective  acknowledgments  of  married  women. 

a.    Competency  to  execute  deeds — Mental  capacity — In- 
tentions of  grantor. 

The  court  instructs  the  jury  that  the  declarations  made 
by prior  to  his  last  sickness  in  regard  to  his  inten- 


214  DEEDS. 

tion  to  make  disposition  of  a  portion  of  his  lands  are  to 
be  considered  by  the  jury,  as  bearing  upon  his  capacity  to 

make  the  deed  of , ,  at  the  time  of  its  execution. 

In  other  words,  these  declarations  are  not  admitted  to 
show  that  a  continuing  and  contemplated  purpose  was 
then  executed,  but  only  to  show,  if  the  jury  so  find  from 
the  evidence  in  the  case,  that  when  the  deed  was  executed, 
he  had  mental  capacity  to  recollect  a  former  intention,  re- 
adopt  and  approve  it,  and  carry  it  into  effect.  The  jury 
is  also  instructed  that  these  declarations  of  his  purpose 
must  not  be  received  as  conclusive  of  the  question, 
whether  they  may,  or  may  not,  have  been  retracted  or 
abandoned.  This  is  a  question  for  the  jury  to  determine 
from  the  evidence.  Dingess  v.  Branson,  14  W.  Va.  104. 
See  also  Jarrett  v.  Jarrett,  11  W.  Va,  626. 

b.    Defective  acknowledgments  of  married  women. 

The  court  instructs  the  jury  that  the  deed  executed  by 

-  to  -  — ,  bearing  date  -  — ,  offered  in  evidence,  and 
purporting  to  be  also  signed  by  -  — ,  and  purporting  to  be 
also  acknowledged  by  -   — ,  wife  of  the  said  -   — ,  is  a 
good  deed  for  the  purpose  of  conveying  the  interest  of 

-  in  the  land  therein  mentioned.    And  the  court  also 
instructs  the  jury  that  if  they  believe  from  the  evidence 
that  the  said  -    — ,  at  the  time  of  the  execution  and 
acknowledgement  of  said  deed,  was  the  wife  of  the  said 

— ,  then  the  said  deed  is  not  valid,  so  far  as  it  purports 
to  be  her  deed,  and  does  not  convey  any  interest  she  may 
have  had  in  said  land,  and  cannot  operate  against  her  or 
her  grantees  by  way  of  estoppel.  Laidley  v.  Land  Co.,  30 
W.  Va.  509. 

[NOTE. — This  was  under  the  statute  requiring  privy  ex- 
aminations of  married  women  in  acknowledgment  of 
deeds.] 


DETINUE— DRUGS  AND  DRUGGISTS.  215 

CHAPTER  24. 

DETINUE. 

a.  Title  to  property. 

b.  Preponderance  of  evidence. 

a.  Title  to  property. 

The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  title  to  the  property  was  in  

(another  than  plaintiff)  at  the  time  he  delivered  the  same 
to  the  defendant,  they  must  find  for  the  defendant.  Davis 
v.  Well,  46  W.  Va.  9. 

b.  Preponderance  of  evidence. 

The  court  instructs  the  jury  that  in  order  to  recover, 
the  plaintiff  must  have  a  preponderance  of  testimony. 
Davis  v.  Wei 6,  46  W.  Va.  9. 


CHAPTER  25. 
DRUGS  AND  DRUGGISTS. 

a.  Negligent  sale  of — How  sale  may  take  place — In- 

jury resulting  from. 

b.  What  druggist's  license  not  required  for  sale  of. 

c.  Proximate  cause  of  injury — Definition  of. 

d.  Contributory  negligence — Definition  of. 

a.    Negligent  sale  of  drugs — How  sale  may  take  place — 

Injury  resulting  from. 

The  court  instructs  the  jury  that  in  law  a  sale  may 
take  place  without  payment  of  money,  and  that  if  they 


216  DRUGS  AND  DRUGGISTS. 

believe  from  the  evidence  that  the  salts  in  question  was 
sent  for  by  -  -  and  at  his  request  through  his  agent, 
and  that  the  salt  petre  was  sold  to  -  — ,  the  agent  of  the 
plaintiff,  by  the  defendants,  when  he  demanded  of  them 
salts,  and  that  they  received  payment  therefor,  that  then 
it  is  immaterial  whether  the  plaintiff  ever  paid  -  — ,  his 
agent,  for  them  or  not,  so  far  as  this  enquiry  is  con- 
cerned. Peters  v.  Johnson  &  Jackson,  50  W.  Va.  652. 

b.  What  druggists'  license  not  required  for  sale  of. 
The  court  instructs  the  jury  that  -    -  is  not  one  of  the 

poisons  or  drugs  included  in  either  schedule  UA"  or 
schedule  "B"  of  section  IX  of  chapter  150  of  the  Code  of 
West  Virginia;  and  that  there  is  no  law  prohibiting  the 
defendants  from  keeping,  exposing  for  sale  and  selling 
the  same,  without  having  license  as  druggists  or  pharma- 
cists Peters  v.  Johnson  <&  Jackson,  50  W.  Va.  652. 

c.  Proximate  cause  of  injury — Definition  of. 

The  jury  are  further  instructed  that  the  proximate 
cause  of  an  injury  is  the  last  negligent  act  contributing 
thereto,  and  without  which  such  injury  would  not  have 
resulted;  and  if  the  jury  believe  from  the  evidence  in  this 
case  that  the  last  negligent  act  contributing  to  the  injury 
complained  of  and  without  which  the  said  injury  would 
not  have  resulted,  was  the  act  of  the  plaintiff,  then,  the 
plaintiff  cannot  recover,  and  the  jury  must  find  a  verdict 
for  the  defendants.  Peters  v.  Johnson  &  Jackson,  50  W. 
Va.  652. 

d.  Contributory  negligence — Definition  of. 

The  jury  are  further  instructed  that  it  is  a  settled  rule 
of  the  common  law  that  for  injuries  negligently  inflicted 
upon  one  person  by  another  there  can  be  no  recovery  of 
damages  if  the  injured  person  by  his  own  negligence 
proximately  contributed  to  the  injury.  Contributory 


DURESS.  217 

negligence  is  a  want  of  ordinary  care  upon  the  part  of  a 
person  injured  by  the  actionable  negligence  of  another, 
and  contributing  to  the  injury  as  a  proximate  cause  there- 
of without  which  the  injury  would  not  have  occurred.  If 
the  jury  believe  from  the  evidence  that  the  plaintiff  was 
guilty  of  contributory  negligence  in  not  using  ordinary 
care  in  the  taking  of  the  drug,  \vhich  he  took  by  mistake 
for  salts,  then  he  is  not  entitled  to  recover  from  the  de- 
fendants, even  though  the  said  -  -  were  guilty  of 
negligence  in  selling  him  the  said  drug,  and  though  they 
believe  that  said  -  -  did  sell  him  the  said  drug,  and 
the  jury  should  find  for  the  defendants.  Peters  v.  John- 
son v.  Jackson,  50  W.  Va.  652. 


CHAPTER  26. 
DURESS. 

a.  Excessive    rates — Offsets — Recovery    of    excessive 

rates  paid  under  duress. 

b.  Same — Duress  defined. 

a.    Excessive  rates — Off-sets — Recovery  of  excessive  rates 

paid  under  duress. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  -  —  railroad  company  was  an  in- 
corporated company,  and  its  road  did  not  exceed  - 
miles  in  length,  and  that  said  road  was  operated  by  steam 
power  at  the  respective  dates  of  the  items  charged  in  the 
defendant's  specifications  of  offsets  filed  in  this  cause, 
then  the  legal  rates  of  transportation  of  -  -  over  the 
line  of  said  road  was  not  exceeding  -  -  cents  per  ton 
per  mile,  and  the  defendant  is  entitled  to  recover  any 
excess  over  the  said  rate  paid  for  the  transportation  of 


218  DURESS. 

the  -  -  in  the  said  specifications  of  off-sets  mentioned 
over  the  line  of  said  road  by  the  defendant  to  the  plain- 
tiff, if  such  payments  were  made  under  duress  and  not 
voluntarily.  Transportation  Co.  v.  Sweetzer,  25  W.  Va. 
439. 

b.    Same — Duress  defined. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  voluntarily  made  the  pay- 
ment in  his  accounts  of  sets-off  mentioned,  with  full 
knowledge,  or  means  of  knowledge,  of  all  the  facts  relat- 
ing thereto,  and  without  duress  of  his  person  or  goods, 
then  he  cannot  recover  on  his  said  sets-off;  that  duress  is 
any  improper  means  brought  to  bear  upon  a  party  where- 
by he  is  not  a  free  agent,  and  if  the  jury  believe  that  the 
defendant  was  placed  in  such  a  condition  by  the  plain- 
tiff that  he  could  not  get  his  goods  to  market,  or  get  them 
out  of  the  plaintiff's  possession  without  paying  for  freight 
thereon  at  a  rate  exceeding  -  -  cents  per  ton  per  mile 
over  the  line  of  the  said  railroad  company,  then  that  con- 
stituted such  duress  of  goods  as  would  entitle  the  de- 
fendant to  recover  upon  his  said  sets-off,  provided  the 
jury  believe  from  all  the  evidence  that  the  plaintiff  did 
charge  the  defendant  for  said  transportation  a  rate  ex- 
ceeding -  -  cents  per  ton  per  mile  as  charged  in  said 
sets-off,  and  that  the  plaintiff  was  operating  by  steam 
power  the  said  -  -  railroad,  and  that  said  railroad  does 
not  exceed  -  -  miles  in  length.  Transportation  Co.  v. 
Sweetzer,  25  W.  Va.  440. 


EJECTMENT.  219 

CHAPTER  27. 
EJECTMENT. 

a.  Strength    of    title  —  Plaintiff    must    recover    on 

strength  of  his  own  title. 

b.  Defeat  of  plaintiff's  claim  by  showing  title  in  an- 

other. 

c.  Identity  of  land — Necessity  for  establishing. 

d.  Source    of    title — Conflicting    titles    arising     from 

same  source — Priorty  of  recordation  of  deeds. 

e.  Superior  title  to,  and  adverse  possession  of  a  por- 

tion of  the  land. 

f.  Color  of  title — Character  of  deed  which  gives  color 

of  title. 

g.  Same — Not  necessary  that  evidence  of  be  in  writing, 
h.     Quantity  of  land — Not  necessary  to  be  considered 

when  conveyance  is  made  by  metes  and  bounds, 
i.     Boundary  lines — Marked  lines  and  ancient  fences  as 

elements  of  proof, 
j.     Same — Natural  boundaries, 
k.     Defective  acknowledgments  of  married  women. 
1.     Life  estate  —  Termination  of  —  Eight  of  way  — 

Statute  of  limitations, 
m.     Taxes — Duty  of  land  owner  to  have  lands  assessed 

for. 
n.     Same — How  coterminous  tracts  belonging  to  same 

person  may  be  assessed, 
o.     Forfeiture — How  deemed  in  law. 
p.    Equity  of  redemption — Purchase  of  land  forfeited 

by  creditor, 
q.    Same — Defeat  of  tax-purchaser's  title — Payment  of 

taxes  by  creditor. 


220  EJECTMENT. 

a.  Strength   of   title  —  Plaintiff   must   recover   on   the 

strength  of  his  own  title. 

The  court  instructs  the  jury  that  the  plaintiff,  in  an 
action  of  ejectment,  must  recover  upon  the  strength  of  his 
own  title,  and  not  upon  the  weakness  of  defendant's  title. 
Coal  Co.  v.  Hoicell,  36  W.  Va.  509. 

b.  Defeat  of  plaintiffs  claim  by  showing  title  in  another. 
The  court  instructs  the  jury  that  in  a  trial  of  an  action 

of  ejectment  it  is  not  necessary  for  the  defendant  to  show 
that  he  has  any  title  to  the  land  in  controversy,  but  can 
defeat  the  plaintiff's  claim  by  showing  a  title  to  the  land 
in  controversy  in  some  other  person  than  the  plaintiff. 
Robinson  v.  Loice,  56  W.  Va.  311. 

c.  Identity  of  land — Necessity  for  establishing. 

The  court  instructs  the  jury  that  before  plaintiff  can 
recover,  he  must  prove  the  identity  of  the  land  claimed  by 
him  and  if  the  identity  of  the  land  is  not  proved  by  the 
plaintiff  to  the  satisfaction  of  the  jury,  they  must  find 
for  the  defendant.  Coal  Co.  v.  Howell,  36  W.  Va.  509. 

d.  Source  of  title — Conflicting  titles  arising  from  same 

source — Priority  of  recordation  of  deeds. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  deed  from  A  to  B,  under  which  the 
defendant  claims,  covers  the  land  in  controversy,  and  if 
they  further  believe  from  the  evidence  that  the  deed  from 
A  to  C,  under  which  the  plaintiff  claims,  also  covers  the 
land  in  controversy,  and  if  they  further  believe  from  the 
evidence  that  the  deed  to  C  was  first  admitted  to  record 
in  the  proper  office  for  recording  said  deeds,  then  the  said 
deed  from  A  to  C  vested  in  said  C  a  valid  title  to  said  land 
in  controversy  unless  the  jury  believe  from  the  evidence 
that  the  said  C  had  notice  that  the  said  deed  to  B,  which  is 
older  in  date  than  the  deed  to  C,  covered  the  land  in  con- 


EJECTMENT.  221 

troversy  and  that  B  claimed  title  thereto.  Congrove  v. 
Bnrdctt,  28  W.  Va.  222. 

e.  Superior  title  to,  and  adverse  possession  of  a  portion 

of  the  land. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant,  and  those  under  whom 
he  claims,  entered  upon  and  took  possession  of  any  part 
of  the  land  in  controversy,  claiming  under  color  or  claim 
of  title  by  deed  or  other  writing,  then  the  defendant,  and 
those  under  whom  he  claims,  thereby  acquired  adversary 
possession  of  such  land  to  the  extent  of  the  boundaries 
embraced  by  such  deed  or  other  writing,  unless  the  jury 
believe  from  the  evidence  that  the  plaintiff  or  those  un- 
der whom  he  claims,  had  the  better  title  and  had  actual 
adverse  possession  of  the  part  of  the  land  embraced  by 
the  deed  or  other  writing  under  which  the  defendant,  or 
those  under  whom  he  claims,  entered  and  took  possession 
of  the  said  land  in  controversy.  Congrove  v.  Burdett,  28 
W.  Va.  223. 

f.  Color  of  title — Character  of  deed  which  gives  color 

of  title. 

The  court  instructs  the  jury  that  a  deed  in  writing 
which  purports  to  convey  lands  by  metes  and  bounds  and 
pass  a  title  thereto,  is  color  of  title,  no  matter  in  what 
its  invalidity  may  consist.  RoMnson  v.  Lowe,  50  W.  Va. 
82. 

g.  Same — Not  necessary  that  evidence  of  be  in  writing. 
The  court  instructs  the  jury  that  color  or  claim  of  title 

which  may  be  sufficient  to  establish  title  to  land  by  ad- 
verse possession,  may  be  under  a  good  or  bad,  legal  or 
equitable  title;  that  it  is  not  indispensible  that  the  claim 
of  title  should  be  in  the  form  of  a  deed  or  any  other  writ- 
ing; that  the  claim,  from  its  nature  or  character,  may  be 


-2-2-2  EJECTMENT. 

wholly  independent  of  any  written  evidence;  and  if  a 
party  have  a  deed  or  other  writing  with  a  specified  bound- 
ary, the  possession  which  he  may  take  and  hold  is  noi 
necessarily  restricted  or  confined  to  what  he  shall  prove 
to  be  within  the  precise  boundary  of  such  deed  or  writ- 
ing; he  may  take  and  hold  actual  possession  of  land  out- 
side of  his  true  boundary.  Congrove  v.  Burdett,  28  W. 
Va.  223. 

h.     Quantity  of  land  not  to  be  considered  when  convey- 
ance is  made  by  metes  and  bounds. 
The  court  instructs  the  jury  that  the  fact  that  the  deed 

from  -     -  to  -     -  conveys  by  metes  bounds  to  said 

more  than  -  -  acres  should  not  be  taken  into  considera- 
tion by  you  in  determining  the  matters  in  controversy  in 
this  action.  Robinson  v.  Lowe,  50  W.  Va.  83. 

i.    Boundary  lines — Marked  lines  and  ancient  fences  ele- 
ments of  proof. 

The  court  instructs  the  jury  that  marked  lines  and 
ancient  fences  are  elements  of  proof  to  be  considered 
when  applicable  in  all  questions  of  boundary,  and  in  this 
case  if  the  jury  believe  from  the  evidence  that  there  was 
an  ancient  fence  at  or  near  the  -  -  stake  called  for  as 
corner  of  the  -  -  acre  tract  of  land  owned  by  — , 
which  marked  his  boundary  line  at  that  point,  the  line 
of  said  fence  as  an  element  of  proof,  is  entitled  to  con- 
sideration in  determining  the  true  line  of  the  land  in 
controversy,  and  the  marked  lines  on  the  land  in  controver- 
sy are  entitled  to  more  weight  than  the  marked  lines  to  ad- 
jacent tracks.  Maxwell  v.  Kent,  49  W.  Va.  548. 

j.     Same — Natural  boundary  lines. 

The  court  instructs  the  jury  that  in  ascertaining  the 
boundaries  of  a  tract  of  land  described  in  a  grant  or  deed, 
natural  boundaries  or  lines  of  marked  trees  will  be  estab- 


EJECTMENT.  223 

lished  in  preference  to  mere  course  and  distance;  and 
where  there  are  no  natural  boundaries  and  lines  of  marked 
trees  to  be  relied  on  to  establish  such  boundaries,  the 
courses  and  distances  called  for  in  such  deed  or  grant 
will  control.  Congrove  v.  Burdett,  28  W.  Va.  222. 

k.    Defective  acknowledgment  of  a  married  woman. 
The  court  instructs  the  jury  that  the  deed  executed  by 
-  to  -  — ,  offered  in  evidence  by  the  plaintiff,  and  pur- 
porting to  be  also  signed  and  acknowledged  by  -  — ,  wife 
of  the  said  -  — ,  is  a  good  deed  for  the  purpose  of  con- 
veying the  interests  of  -     -  in   the  lands  therein   men- 
tioned ;  and  the  court  also  instructs  the  jury  that  if  they 
find  from  the  evidence  that  the  said  -  — ,  at  the  time  of 
the  execution  and  acknowledgement  of  said  deed,  was  the 

wife  of  the  said ,  then  the  said  deed  is  not  valid,  so 

far  as  it  purports  to  be  her  deed,  and  does  not  convey  any 
interests  she  may  have  had  in  said  land,  and  cannot 
operate  against  her  or  her  grantees  by  way  of  estoppel. 
Laidley  v.' Land  Co.,  30  W.  Va.  508. 

1.    Life-estate — Termination  of— Right  of  way— Statute 

of  limitations. 

The  court  instructs  the  jury  that  if  the  defendant  had 
only  received  a  conveyance  of  the  right  of  a  way  over  the 

land  in  controversy  from ,  and  the  said was  only 

seized  of  a  life-estate  in  said  land  by  virtue  of  his  mar- 
riage, then  the  title  of  the  defendant  ceases  at  the  ter- 
mination of  said  life-estate.  And  the  statute  of  limita- 
tions will  not  commence  to  run  in  favor  of  the  defendant 
until  after  the  said  life-estate  terminates.  Jones  v.  Rail- 
road Co.,  U  W.  Va.  518. 

m.    Taxes — Duty  of  land-owner  to  have  lands  assessed 
for — When  failure  to  have  assessments  made  and 
taxes  paid  works  forfeiture. 
The  court  instructs  the  jury  that  it  shall  be  the  duty 


224  EJECTMENT. 

of  every  owner  of  land  to  have  it  entered  on  the  land  books 
of  the  count}'  in  which  it  or  a  part  of  it  is  situated,  and 
to  cause  himself  to  be  charged  with  the  taxes  thereon  and 
pay  the  same.  When  for  any  five  consecutive  years  after 
the  year  1869  the  owner  of  any  tract  of  land  shall  not 
have  been  charged  on  such  books  with  state  tax  on  said 
land,  then  the  land  shall  be  forfeited  and  the  title  thereto 
vested  in  the  state.  If  the  evidence  in  this  case  shows 
that  the  land  claimed  by  the  plaintiff  was  not  for  any  five 
successive  years  after  the  year  1869,  charged  on  the  land 
books  of  the  county  in  which  it  was  situated  and  the 
plaintiff  or  those  under  whom  he  claims  did  not  cause 
themselves  to  be  charged  with  taxes  thereon  and  pay  the 
same,  then  the  said  land  or  lands  were  forfeited  and  the 
title  thereto  vested  in  the  state  and  the  plaintiff  cannot 
recover  in  this  suit  and  the  jury  must  find  for  the  de- 
fendant. Davis  v.  Living,  50  W.  Va.  433. 

[NOTE. — While  forfeiture  before  the  suit  commences 
defeats  tue  plaintiff's  suit,  forfeiture  before  the  trial  does 
likewise.] 

[NOTE. — For  other  instructions  concerning  forfeiture, 
for  non-payment  of  taxes  on  which  quasi  approval  seem  to 
have  been  placed.  See  Davis  v.  Living,  50  W.  Va.  432, 
433,  434.] 

n.    Same — How   coterminous   tracts   belonging   to   same 

party  may  be  assessed. 

The  court  instructs  the  jury  that  if  a  person  has  his 
land  charged  upon  the  land  books  in  a  large  tract  that 
covers  all  his  smaller  tracts,  or  any  of  his  smaller  tracts, 
it  is  not  necessary  for  him  to  have  it  charged  to  him  in 
the  small  tracts,  and  no  forfeiture  can  accrue  to  those 
small  tracts  by  reason  of  their  being  so  charged  as  small 
tracts,  if  they  are  included  in  the  large  tracts.  In  other 


EJECTMENT.  225 

words,  coterminous  tracts  of  land  belonging  to  the  same 
person  for  the  assessment  and  payment  of  taxes  are  the 
same  as  one  tract.  Maxwell  v.  Cunningliam,  50  W.  Va. 
301. 

o.  Forfeitures — How  deemed  in  law — What  party  claim- 
ing benefit  of  forfeiture  must  prove. 
The  court  instructs  the  jury  that  forfeitures  are  deemed 
odious  in  law  and  -will  never  be  presumed,  but  must  be 
strictly  proved  by  the  party  relying  on  the  same.  And 
before  the  defendant  can  have  the  benefits  of  the  for- 
feiture claimed  by  him  for  a  failure  of  the  plaintiff,  or 
those  under  w,hom  he  claims,  to  have  had  the  land  in  con- 
troversy placed  upon  the  land  books  in  -  —  county  and 
pay  the  taxes  thereon  for  five  successive  years  after  the 

year ,  the  defendant  must  clearly  prove  that  the  said 

land,  or  any  part  thereof,  in  controversy  has  not  been  up- 
on the  land  books  for  those  years,  neither  in  large  tracts 
nor  small  ones.  Maxwell  v.  Cunningham,  50  W.  Va.  301. 

p.    Equity  of  redemption — Purchase  by  creditors. 

The  court  instructs  the  jury  that  when ,  the  debtor, 

executed  the  deed  to  -  — ,  he  conveyed  nothing  but  the 
equity  of  redemption,  or  right  to  pay  off  the  deed  of  trust 
and  prevent  the  sale  of  the  land  conveyed  therein;  and 

if  they  believe  from  the  evidence  that  the  acres  of 

land  was  sold  by  -  — ,  trustee,  and  purchased  by  -  — , 
the  creditor,  that  such  sale  vested  in  -  — ,  the  creditor, 
the  legal  title  to  said  land,  and  they  should  find  for  the 
plaintiff.  Carrell  v.  Mitchell,  37  W.  Va.  141. 

q.    Same — Defeat  of  tax  purchasers  title — Payment  of 

taxes  by  creditor. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that was  a  creditor  of ,  and  as  such, 


226  ELECTRICAL  COMPANIES. 

paid  the  taxes  on  the  land  in  controversy  for  the  years  for 
which  it  was  returned  delinquent,  then  the  same  was  im- 
properly returned  delinquent,  and  the  tax-deed  conferred 
no  title  on  the  purchaser  at  the  tax  sale.  Carrell  v. 
Mitchell,  37  W.  Va.  140. 


CHAPTER  28. 
ELECTRICAL  COMPANIES. 

a.  Insulation  of  wires — Duty  of  company  as  to. 

b.  Liability  of  company  for  injuries  resulting  from 

improper  insulation. 

c.  Same. 

d.  Same — Live  wires — Defective  insulation. 

e.  Cause  of  injury — Preponderance  of  evidence. 

f.  Cause  of  injury  other  than  that  alleged. 

g.  Same. 

h.  Injuries  caused  by  other  than  the  natural  results 
of  negligence  of  defendant. 

i.     As  to  liability  for  injury  had  injury  not  been  fatal. 

j.     Unavoidable  accidents — Violation  of  duty. 

k.     Anticipated  accidents — What  to  be  considered. 

1.  Proximate  cause  of  injury — Preponderance  of  evi- 
dence. 

m.     Preponderance  of  evidence. 

n.     Same — What  must  be  established  by. 

o.  Utmost  caution  required  of  company — Definition 
of. 

a.    Insulation  of  wires — Duty  of  company  as  to — Require- 
ments as  to — Inspection  of  wires. 

The  court  instructs  the  jury  that  it  was  the  duty  of  the 
defendant  to  not  only  protect  any  portion  or  portions  of 


ELECTRICAL  COMPANIES.  227 

its  wires  in  close  proximity  to  the  —  -  end  of  the  balcony 
mentioned  in  evidence  that  may  be  exposed,  by  proper  in- 
sulation, so  that  persons  coming  in  contact  therewith  in 
the  performance  of  their  work  would  not  be  injured,  but 
it  was  also  the  duty  of  the  defendant,  by  proper  inspec- 
tion from  time  to  time,  to  see  that  said  insulation  was 
kept  in  a  proper  condition.  Thomas  v.  Electrical  Co.,  54 
W.  Va.  398. 

b.  Liability  of  company  for  injuries  resulting  from  im- 

proper insulation. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  -  was  attempting  to  release  the  ban- 
ner on  the side  of  the  balcony  mentioned  in  evidence 

and  leaned  over  the  balcony  in  such  a  way  that  he  was 
brought  in  close  proximity  to  the  wire  of  the  defendant, 
and  that  by  some  accident  his  hand  came  in  contact  with 
said  wire,  and  that  said  wire  at  the  point  of  contact  was 
improperly  insulated,  and  that  he  thereby  received  from 
said  wire  the  shock  of  electricity  which  caused  his  death, 
and  further  believe  that  he  received  such  shock  of  elec- 
tricity by  reason  of  the  failure  of  the  defendant  to  prop- 
erly insulate  its  wires  at  the  point  where  the  deceased 
came  in  contact  therewith,  then  the  jury  should  find  a 
verdict  for  the  plaintiff.  Thomas  v.  Electrical  Co.,  54  W. 
Va.  401. 

c.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  one  of  the  wires  of  the  defendant  in 
close  proximity  to  the  -  -  end  of  the  balcony  men- 
tioned in  evidence  was  not  properly  insulated,  and  that 
deceased  was  attempting  to  release  the  banner  on  the 
-  end  of  said  balcony  and  leaned  over  said  balcony 
and  without  negligence  on  his  part  was  thereby  brought 


ELECTRICAL  COMPANIES. 


in  contact  with  said  wire  where  it  was  improperly  insu- 
lated, and  by  reason  of  such  contact  received  a  shock  of 
electricity  from  said  wire  which  caused  his  death,  then 
the  jury  should  find  a  verdict  for  the  plaintiff.  Thomas 
v.  Electrical  Co.,  54  W.  Va.  402. 

d.  Same  —  Live  wires  —  Defective  insulation. 

The  court  instructs  the  jury  that  even  if  they  believe 
from  the  evidence  that  deceased  knew  of  the  presence  of 
the  wire  of  the  defendant  company  near  the  balcony  men- 
tioned in  evidence,  and  further  believe  that  when  in  the 
act  of  releasing  or  attempting  to  release  the  banner  on  the 
-  end  of  said  balcony  he  was  brought  in  such  close 
proximity  to  such  wire  that  he  took  hold  of  the  same  to 
support  himself,  this  fact  will  not  excuse  the  defendant 
from  liability  if  the  jury  believe  from  the  evidence  that 
deceased  did  not  know  that  it  was  dangerous  to  touch 
said  wire  and  that  he,  in  taking  hold  of  said  wire  received 
such  a  shock  of  electricity  by  coming  in  contact  there- 
with that  his  death  was  caused  thereby;  and  provided 
further  that  the  jury  believe  that  such  shock  was  caused 
by  defective  or  improper  insulation  of  said  wire  at  the 
point  where  deceased  came  in  contact  with  it.  Thomas 
v.  Electrical  Co.,  54  W.  Va.  402. 

e.  Cause  of  injury  —  Preponderance  of  evidence. 

The  court  instructs  the  jury  that  unless  the  plaintiff 
prove  by  a  preponderance  of  the  evidence  that  the  injury 
complained  of  occurred  by  contact  with  the  wire  or  one 
of  the  wires  of  the  -  -  company,  described  in  the  evi- 
dence as  being  -  —  of  the  -  -  building,  then  it  is 
the  duty  of  the  jury  to  find  a  verdict  for  the  defendant. 
Thomas  v.  Electrical  Co.,  54  W.  Va.  403. 

f.  Cause  of  injury  other  than  that  alleged. 

The  court  instructs  the  jury  that  if  you  believe  from 


ELECTRICAL  COMPANIES.  229 

the  evidence  that  the  deceased  was  killed  by  placing  his 
hand  on  the  messenger  wire,  on  the  north  west  side  of  the 
balcony,  and  was  not  killed  by  contact  with  the  wires  of 
the  defendant  company,  then  you  must  find  for  the  defend- 
ant. Thomas  v.  Electrical  Co.,  54  W.  Va.  403. 

g.    Same. 

The  court  instructs  the  jury  that  if  you  believe  from 

the  evidence  that  the  injury  sustained  by  was 

caused  by  contact  with  the  messenger  wires  of  the 

Telegraph  Company  or  by  a  current  of  electricity  coming 
from  the  tin  or  sheet  iron  roof  of  the  balcony,  then  your 
verdict  should  be  for  the  defendant.  Thomas  v.  Electrical 
Co.,  54  W.  Va.  403. 

h.    Injuries  caused  by  other  than  the  natural  results  of 

negligence  of  defendant. 

The  court  instructs  the  jury,  that  although  they  may  be- 
lieve from  the  evidence  that  the  injury  complained  of  was 
occasioned  by  the  negligent  acts  of  the  defendant  in  fail- 
ing to  insulate  its  wires  and  its  failure  to  inspect  the 
same,  still,  if  you  further  believe  from  the  evidence  that 
said  injury  was  not  the  natural  result  of  the  negligent 
acts  of  the  defendant  in  failing  to  insulate  its  wires,  and 
in  its  failure  to  inspect  the  same,  and  could  not  have 
been  reasonably  foreseen  or  expected  to  result  from  the 
conduct  of  the  defendant  in  regard  to  its  failure  to  insu- 
late its  wires,  and  its  failure  to  inspect  the  same,  then 
the  defendant  would  not  be  liable.  Thomas  v.  Electrical 
Co.,  54  W.  Va.  403. 

i.    As  to  liability  for  injury  had  injury  not  been  fatal. 

The  court  instructs  the  jury  that  the electrical 

company  is  only  liable  in  case  it  would  have  been  liable 
to  deceased  if  the  injuries  to  him  had  not  resulted  in 


230  ELECTRICAL  COMPANIES. 

death.  Therefore,  if  the  jury  believe  from  the  evidence 
that  -  — ,  either  by  his  own  negligence,  or  the  defend- 
ant's want  of  negligence,  would  not  have  been  entitled 
to  recover  in  case  he  had  survived  the  injury,  they  are 
instructed  to  find  for  the  defendant.  Thomas  v.  Electrical 
Co.,  54  W.  Va.  403. 

j.    Unavoidable  accident — Violation  of  duty. 

The  court  instructs  the  jury  that  where  the  circum- 
stances of  an  accident  indicate  that  it  may  have  been 
unavoidable  notwithstanding  reasonable  and  proper  care, 
the  plaintiff  charging  negligence  cannot  recover  without 
showing  that  the  defendant  has  violated  a  duty  incum- 
bent upon  it  from  which  the  injury  followed  in  natural 
sequence.  Snyder  v.  Electrical  Co.,  43  W.  Va.  671. 

i 
k.    Anticipated  accidents — What  to  be  considered. 

The  court  instructs  the  jury  that  the  defendant  in 
erecting  and  maintaining  its  wires,  was  only  bound  to  an- 
ticipate such  combinations  of  circumstances  and  accidents 
and  injuries  therefrom  as  it  may  reasonably  forecast  as 
likely  to  happen,  taking  into  account  its  past  experience 
and  the  experience  and  practice  of  others  in  similar  situ- 
ations, together  with  what  is  inherently  probable  in  the 
condition  of  the  wires  as  they  relate  to  the  conduct  of  its 
business.  Snyder  v.  Electrical  Co.,  43  W.  Va.  672. 

1.    Proximate   cause  of  injury — Preponderance   of  evi- 
dence. 

The  court  instructs  the  jury  that  in  case  the  plaintiff 
bases  his  claim  for  damages  upon  alleged  negligence  and 
carelesseness  on  the  part  of  the  defendant,  and  that  be- 
ing so,  that  the  burden  is  upon  the  plaintiff  to  establish 
such  negligence  first  and  then  to  prove  that  such  negli- 
gence was  the  proximate  cause  of  the  injury;  and  if  the 


ELECTRICAL  COMPANIES.  231 

plaintiff  fail  to  establish  these  facts  by  a  preponderance 
of  the  evidence,  it  is  the  duty  of  the  jury  to  find  a  verdict 
for  the  defendant.  Thomas  v.  Electrical  Co.,  54  W.  Ya. 
403. 

m.    Preponderance  of  evidence — How  determined. 

The  court  instructs  the  jury  that  the  preponderance  of 
the  evidence  in  a  case,  is  not  alone  determined  by  the 
number  of  witnesses  testifying  to  a  particular  fact  or  state 
of  facts,  in  determining  upon  which  side  the  preponder- 
ance of  the  evidence  is,  the  jury  should  take  into  con- 
sideration the  opportunities  of  the  several  witnesses  for 
seeing  or  knowing  the  things  about  which  they  testify; 
their  conduct  and  demeanor  while  testifying,  and  the 
probability  or  improbability  of  the  truth  of  their  several 
statements  in  view  of  all  the  other  evidence,  facts  and 
circumstances  proved  on  the  trial,  and  from  these  cir- 
cumstances determine  upon  which  side  is  the  weight  or 
preponderance  of  the  evidence.  Thomas  v.  Electrical  Co., 
54  W.  Va.  403. 

n. — Same — What  must  be  established  by. 

The  court  instructs  the  jury  that  before  they  can  render 
a  verdict  for  the  plaintiff,  the  plaintiff  must  prove  by  a 
preponderance  of  evidence,  that  the  injury  complained  of 
was  sustained  by  —  -  by  reason  of  the  wire  described  in 
the  evidence  not  being  properly  insulated  and  that  this 
lack  of  proper  insulation  was  due  to  the  negligence  and 
carelessness  of  the  defendant ;  and  unless  plaintiff  proves 
these  facts  by  a  preponderance  of  the  evidence,  the  jury 
should  find  a  verdict  for  the  defendant.  Thomas  v.  Elec- 
trical Co.,  54  W.  Va.  403. 

o.    Utmost  caution  required  of  company — Definition  of. 
The  court  instructs  the  jury  that  the  care  and  caution 


232  EXEMPTIONS— EXPLOSIONS. 

that  is  required  in  the  management  and  control  of  elec- 
tricity does  not  reach  so  far  as  to  require  precautions  that 
are  extraordinary  and  impracticable.  Even  if  the  utmost 
caution  is  to  be  required,  that  means  only  the  caution 
which  is  practicable  and  not  that  which  is  simply  con- 
ceivable. Thomas  v.  Electrical  Co.,  54  W.  Va.  403. 


CHAPTER  29. 

EXEMPTIONS. 

a.    Party  leaving  the  state — Intention  as  to  change  of 

residence. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  left  the  state  with  the  in- 
tention of  changing  his  residence  to  -  — ,  (another 
state) ,  and  that  while  going  out  of  this  state  pursuant  to 
such  intention,  his  property  was  attached  and  sold,  as 
stated  in  the  evidence,  he  was  not  entitled  to  claim,  as 
against  such  levy,  an  exemption  as  a  husband  and  parent 
residing  in  this  state,  and  in  such  case  the  jury  should 
find  for  the  defendant.  State  &c.  v.  Allen,  48  W.  Va.  155. 


CHAPTER  30. 
EXPLOSIONS. 

a.    Injury  to  property  caused  by  the  explosion  of  a  boiler 
— Presumption  that  person  in  performance  of  lawful 
act  has  done  his  duty. 
The  court  instructs  the  jury  that  they  cannot  infer 

negligence  from  the  mere  explosion  of  the  boiler.     The 


EXPLOSIVES.  233 

plaintiff  must  prove  in  addition  to  such  explosion,  such 
facts  and  circumstances  as  will  logically  raise  an  in- 
ference of  negligence  on  the  part  of  the  defendant  before 
they  can  find  for  the  plaintiff.  The  presumption  of  law 
is,  that  persons  in  the  performance  of  a  lawful  act  have 
done  their  duty,  and  this  presumption  continues  until 
the  contrary  is  proven.  Veith  v.  Salt  Co.,  51  W.  Va.  100. 


CHAPTER  31. 
EXPLOSIVES. 

a.  Injuries  caused  by  explosion  of  dynamite. 

b.  Admissions  of  defendant — Negligence. 

a.  Injuries  caused  by  the  explosion  of  dynamite. 

The  court  instructs  the  jury  that  if  they  believe  from  the 
evidence  that  the  plaintiff  was  injured  by  the  explosion 
of  dynamite,  as  complained  of  in  the  declaration,  and 

that  the   negligence  of  the  defendant  was   the 

proximate  cause  of  the  injury  received  by  the  plaintiff, 
then  they  must  find  a  verdict  for  the  plaintiff.  Schwartz 
v.  8hull,  45  W.  Va.  411. 

b.  Admissions  of  defendant — Negligence. 

The  court  instructs  the  jury  that  even  if  they  believe 
from  the  evidence  that  the  defendant,  after  the  explosion, 
and  injury  of  the  plaintiff,  stated  or  admitted  that  he 
was  to  blame  in  the  matter,  or  that  it  was  his  fault,  yet 
that  does. not  entitle  the  plaintiff  to  recover  unless  the 
evidence  in  the  case  before  the  jury,  including  such  state- 
ment of  said  defendant,  if  the  jury  believe  that  it  was 
made,  shows  that  the  defendant  was  negligent,  and  that 
his  negligence  was  the  direct  and  proximate  cause  of  plain- 
tiff's injuries.  Schwartz  v.  Shull,  45  W.  Va.  410. 


234  FALSE  ARREST  AND  IMPRISONMENT. 

CHAPTER  32. 
FALSE  ARREST  AND  IMPRISONMENT. 

a.  Arrest  of  passenger  on  a  railroad  train  by  civil 

officer. 

b.  Arrest  of  passenger  by  conductor  of  train. 

c.  Same — Scope  of  authority  of  conductor. 

d.  Same — Definition  of  scope  of  authority. 

e.  Same. 

f.  Arrest  of  person  engaged  in  an  unlawful  combina- 

tion. 

a.  Arrest  of  passenger  on  a  railroad  train  by  a  civil  offi- 

cer— Same — While  passenger  armed  with  dangerous 

or  unlawful  weapons. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff,  while  armed  with  danger- 
ous or  unlawful  weapons,  was  on  the  train  of  the  de- 
fendant, within  the  corporate  limits  of  -  — ,  and  it 
became  known  to  the  police  of  that  town  that  he  was  so 
unlawfully  armed,  the  police  had  the  right  to  arrest  him 
on  the  cars,  and  take  him  therefrom,  and  the  defendant, 
the  -  -  railway  company,  would  not  be  liable  for  such 
arrest.  Claiborne  v.  Railway  Co.,  46  W.  Va.  369. 

b.  Arrest  of  passenger  by  conductor  of  train — Acts  of 

conductor,  acts  of  railroad  company. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  without  just  cause  was 
arrested  after  he  became  a  passenger  on  one  of  the  de- 
fendant's trains,  and  during  the  time  that  he  was  on  such 
train,  either  by  the  conductor  in  charge  of  said  train  or 
by  the  policeman,  -  — ,  by  order  of  the  said  conductor, 


FALSE  ARREST  AND  IMPRISONMENT.  235 

that  the  act  of  the  conductor,  or  of  the  said  policeman 
acting  under  the  orders  of  the  said  conductor,  was  the 
act  of  the  defendant.  Gillingham  v.  Railroad  Co.,  35  W. 
Va.  602. 

c.  Same — Scope  of  authority  of  conductor. 

The  court  instructs  the  jury  that  the  plaintiff  cannot  re- 
cover in  this  case  unless  the  acts  done  by  the  conductor 
in  causing  the  arrest  of  the  plaintiff  were  within  the 
scope  of  his  employment  by  the  defendant  railroad  com- 
pany ;  and  such  acts,  to  be  within  the  scope  of  his  employ- 
ment, must  be  such  as  he  would  be  usually  and-  naturally 
called  upon  to  do  while  discharging  his  duties  as  a  rail- 
road conductor  in  and  about  the  business  of  the  defend- 
ant railroad  company.  Gillingham  v.  Railroad  Co.,  35 
W.  Va.  603. 

d.  Same — Scope  of  authority  defined. 

The  court  instructs  the  jury  that  it  is  not  sufficient  that 
the  acts  complained  of  were  done  during  the  time  of  the 
conductor's  employment  by  the  railroad  company,  or  at 
the  place  where  his  duties  called  him  to  be.  There  must 
be  something  more,  something  which  he  was  authorized 
by  the  defendant  company  to  do,  or  which  he  did  do  while 
acting  as  such  conductor,  in  the  scope  of  his  duties  and 
employment.  Gillingham  v.  Railroad  Co.,  35  W.  Va.  603. 

e.  Same. 

The  court  instructs  the  jury  that  unless  the  act  done 
by  the  conductor  in  causing  the  arrest  of  the  plaintiff  was 
authorized  by  the  railroad  company,  or  was  properly  and 
legitimately  within  the  scope  of  his  employment,  you  must 
find  for  the  defendant.  Gillingham  v.  Railroad  Co.,  35  W. 
Va.  602. 


236  FALSE  REPRESENTATIONS. 

f .    Arrest  of  person  by  persons  engaged  in  unlawful  com- 
bination. 

The  court  instructs  the  jury  that  if  they  be- 
lieve from  the  evidence  in  this  case  that  — , 
— ,  -  — ,  -  — ,  -  — ,  and  -  —  combined 
for  an  unlawful  purpose,  and  in  the  execution  of 
that  purpose  as  a  consequence  of  that  unlawful  combi- 
nation, the  plaintiff  was  arrested  without  probable  cause, 
and  imprisoned  by  any  of  the  defendants,  the  law  is  for 
the  plaintiff,  with  the  plea  of  not  guilty,  and  they  must 
find  for  him  such  damages  as  they,  in  their  discretion, 
may  deem  proper,  not  exceeding  the  amount  laid  in  the 
writ  Bloss  v.  Plymale,  3  W.  Va.  399. 


CHAPTER  33. 
FALSE  REPRESENTATIONS. 

a.    Avoidance  of  contracts  founded  on — Fraudulent  in- 
tent. 

The  court  instructs  the  jury  that  if  a  seller,  in  order  to 
induce  a  sale,  makes  a  false  representation  as  to  any  ma- 
terial fact,  by  which  the  purchaser  is  mislead  to  his  in- 
jury, and  in  which  the  purchaser  is  presumed  to  have 
trusted  to  the  seller,  then  the  contract  founded  on  such 
representation  is  void,  whether  the  seller  knew  the  repre- 
sentations to  be  false  at  the  time  they  were  made  or  not, 
and  whether  made  with  a  fraudulent  intent  or  not.  Hood 
v.  Block,  29  W.  Va.  250. 


FERRIES— FLOATABLE    STEAMS.  237 

CHAPTER  34. 
FERRIES. 

a.    Right  of  county  court  to  authorize  in  incorporated 

towns. 

The  court  instructs  the  jury  that  if  they  find  from  the 
evidence  that  the  plaintiff,  -  — ,  has  been  authorized 
by  the  county  court  of  -  —  county,  to  establish  a  ferry 
from  the  mouth  of  -  -  grade  and  -  -  road,  or  with- 
in fifty  yards  thereof,  upon  his  own  land  or  upon  land 
contracted  for,  to  —  —  street,  -  — ,  or  within  twenty 
yards  thereof,  that  said  roads  and  streets  are  public  high- 
ways, and  the  grant  from  the  county  court  operates  to 
confer  upon  the  plaintiff  the  right  to  land  his  boat  and 
take  passengers  from  the  foot  of  -  -  street  without 
showing  to  the  jury  that  he  first  obtained  the  consent  of 
the  authorities  of  -  — .  Mason  v.  Bridge  Co.,  20  W.  Va. 
234. 


CHAPTER  35. 
FLOATABLE  STREAMS. 

a.  What  deemed  a  floatable  stream — Obstructions  to. 

b.  Same — Natural   commercial   capacity   of   stream — 

Non-user  of  stream. 

c.  How  navigability  of  stream  determined. 

d.  Criminal  liability  for  obstructing  floatable  streams. 

a.    What  deemed  a  floatable  stream — Obstructions  to. 

The  court  instructs  the  jury  that  it  is  a  question  for  the 
jury   to    determine   from   the   evidence   whether   


238  FLOATABLE   STEAMS. 

river,  at  the  point  at  which  the  -  -  complained  of  is 
located,  is  floatable;  and  if  the  jury  believe  from  the  evi- 
dence that  said  river  is  capable  of  being  used  to  float 
rafts,  boats,  and  other  timber  in  times  of  rises  only,  then, 
before  they  can  find  the  defendant  guilty,  it  must  be 
proven  to  the  jury  by  the  evidence,  beyond  all  reasonable 
doubt,  that  the  dam  complained  of  was  so  constructed 
•and  maintained  as  not  to  permit  boats,  rafts,  and  other 
timber  to  pass  without  unavoidable  delay,  at  times  of 
such  rises  as  made  the  river  so  floatable.  State  v.  Boom 
Co.,  41  W.  Va.  800. 

b.  Same — Natural  commercial  capacity  of  stream — Non- 

user  of  stream. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  -  creek  is,  and  has  always  been, 
by  reason  of  its  natural  capacity,  navigable  for  floating 
lumber,  logs,  and  other  commercial  goods,  the  right  of  the 
public  to  use  the  same  for  such  purpose  cannot  be  lost  or 
forfeited  by  reason  of  non-user  of  it,  or  maintaining  an 
obstruction  thereto,  for  any  length  of  time,  and  under 
such  circumstances  the  plaintiff  could  not  acquire  a 
right  to  maintain  a  dam  or  other  obstruction  to  the  public 
use  of  said  stream.  Gaston  v.  Mace,  33  W.  Va.  18. 

c.  How  navigability  of  stream  determined. 

The  court  instructs  the  jury  that  in  determining  the 
navigability  of  -  -  creek,  it  is  the  valuable,  more  than 
the  continued  capacity  that  is  to  be  considered.  The 
real  question  is,  can  it  be  made  a  valuable  and  beneficial 
aid  to  the  public  in  getting  the  products  of  the  country 
to  market?  Gaston  v.  Mace,  33  W.  Va.  18. 

d.  Criminal   liability   of   boom   owner   for   obstructing 

floatable  streams. 
The  court  instructs  the  jury  that  it  is  a  question  for 


FORGED  INSTRUMENTS— FORGERY.        239 

the  jury  to  determine  from  the  evidence  whether  - 
river  at  the  point  at  which  the  dam  complained  of  is  lo- 
cated, is  floatable;  and  if  the  jury  believe  from  the  evi- 
dence that  said  river  is  capable  of  being  used  to  float 
rafts,  boats  and  other  timber  in  time  of  rises  only,  then, 
before  they  can  find  the  defendant  guilty,  it  must  be 
proven  to  the  jury  by  the  evidence,  beyond  all  reasonable 
doubt,  that  the  dam  complained  of  was  so  constructed 
and  maintained  as  not  to  permit  boats,  rafts,  and  other 
timber  to  pass  without  unavoidable  delay,  at  the  times 
of  such  rises  as  made  the  said  river  so  floatable.  State 
v.  Boom  Co.,  41  W.  Va.  800. 


CHAPTER  36. 

FORGED  INSTRUMENTS— FOKGEKY. 

a.  Definition  of  forgery — Intent  to  defraud — Altera- 

tion of  instrument  after  signature. 

b.  Delay  in  giving  notification  of  forgery — Demand  for 

repayment. 

c.  Knowledge   and   good   faith   of  party   discounting 

forged  instrument. 

d.  Effect  of  negotiations  with  payee  for  payment  of 

forged  instrument. 

a.    Forgery — Definition   of — Intent   to   defraud — Altera- 
tion of  instrument  after  signature. 
The  court  instructs  the  jury  that  the  offense  of  forgery 
consists  in  the  false  making  or  altering  of  a  written  in- 
strument, to  the  prejudice  of  another's  rights  and  the  in- 
tent to  defraud ;  that  in  the  case  at  bar  the  only  two  ques- 
tions before  the  jury  are :    1st,  did  the  defendant  alter  the 
instrument  after  it  was  signed  by  ,  and,  2nd,  was 


240       FORGED  INSTRUMENTS— FORGERY. 

such  alteration,  (if  made  by  the  defendant),  done  with 
intent  to  defraud  and  that  the  question  of  intent  need  not 
be  enquired  into  by  them  unless  they  first  believe  from  the 
evidence,  beyond  a  reasonable  doubt,  that  the  defendant 

altered  the  said  instrument  after  it  was  signed  by , 

and  if  the  evidence  leaves  a  reasonable  doubt  in  their 
minds  as  to  whether  the  said  defendant  altered  the  said 
instrument  after  it  was  so  signed  by  the  said  —  — ,  they 
must  find  the  defendant  not  guilty.  State  v.  Pine,  56  W. 
Va.  10. 

b.  Delay  in  giving  notification  of  forgery — Demand  for 

re-payment. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  plaintiff  on  the  —       —  day  of , 

18 — ,  knew  the  forgery  of  his  name  to  the  note  mentioned 
as  paid  by  mistake  by  him  on  -  — ,  18 — ,  and  that 

the  plaintiff  failed  to  notify  the  defendant  of  said  forgery 
till  the  fifteenth  day  of  April  following  and  to  demand 
a  re-payment  of  the  money,  that  then  by  reason  of  his 
delay  he  is  not  entitled  to  recover  in  this  suit.  Johnston 
v.  Bank,  27  W.  Va.  346. 

c.  Knowledge   and   good   faith    of   person    discovering 

forged  instrument. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  discounted  the  note  in 
this  suit  mentioned  and  received  the  same  in  his  regular 
course  of  business,  in  good  faith  and  for  value,  and  did 
not  know  or  have  any  reason  to  suspect  that  the  plaintiffs' 
name  as  maker  was  forged  to  said  note  when  the  defend- 
ant discounted  the  same,  and  that  said  note  was  paid 
by  plaintiff  or  by  his  agent,  to  the  defendant  on,  or  about 
April  2,  18 — ,  that  then  and  in  that  event  the  plaintiff  is 
not  entitled  to  demand  back  the  money  so  paid,  and  can- 


GIFTS.  241 

not  recover  in  this  suit.    Johnston  v.  Bank,  27  W.  Va. 
346. 

d.  Effect  of  negotiations  with  payee  for  payment  of 
forged  note  without  the  knowledge  or  consent  of 
holder  of  same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  after  the  plaintiff  discovered  that  his 
name  to  said  note  in  this  suit  as  maker  had  been  forged 
by  the  payee,  and  that  the  plaintiff  without  the  knowledge 
or  consent  of  the  defendant  entered  into  negotiations  with 
the  said  payee,  for  the  re-payment  of  the  money  paid  by 
the  plaintiff  to  the  defendant  on  said  note  and  without 
the  knowledge  or  consent  of  the  defendant  gave  time  to 
said  payee  to  arrange  for  and  make  said  re-payment  to 
the  plaintiff,  that  then  and  in  that  event  the  plaintiff  must 
be  held  as  having  adopted  said  forged  note  as  his  own 
and  said  payee  as  his  debtor  and  that  he  must  look  to 
said  payee  for  re-payment,  and  is  therefore,  not  entitled 
to  recover  in  this  suit.  Johnston  v.  Bank ,  27  W.  Va.  346. 


CHAPTER  37. 
GIFTS. 

a.  Gifts  causa  mortis — What  necessary  to  constitute. 

b.  Place    of    making    gift — Residence    of    donor    and 

donee  , 

a.    Gifts  causa  mortis — What  necessary  to  constitute. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  -  -  money  here  in  controversy 
was  delivered  by  -  — ,  (the  donor),  to  -  -  for  his 
daughter  as  a  voluntary  gift  from  said  ,  (the 


242  GIFTS. 

donor),  to  said  daughter,  then  so  long  as  said  money 
remained  in  the  hands  of  -  — ,  said  -  — ,  (the  donor), 
had  the  right  to  revoke  the  gift  and  reclaim  the  money 
from  -  — ,  and  if  the  said  -  — ,  (the  donor),  died 
while  the  said  money  still  remained  in  the  possession  of 
the  said  —  — ,  and  not  yet  delivered  by  him  to  his  daugh- 
ter, the  authority  to  deliver  was  thereby  revoked,  and  the 
said  money  is  the  property  of  the  plaintiff,  the  administra- 
tor of  the  said  -  — ,  (the  donor).  Dickeshied  v.  Bank, 
28  W.  Va.  352. 

b.    Place  of  gift — Residence  of  donor  and  donee. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  — ,  (the  donor),  gave  the  - 
money  here  in  controversy  to  -  -  for  his  daughter 
while  said  -  — ,  (the  donor),  and  -  -  resided  to- 
gether, and  that  said  -  — ,  or  his  daughter,  did  not  have 
possession  of  the  said  money  elsewhere  than  at  such  resi- 
dence until  after  the  death  of  -  — ,  (the  donor),  then 
such  gift  was  not  valid,  and  the  jury  should  find  for  the 
plaintiff,  the  administrator  of  said  -  — ,  (the  donor). 
Dickeshied  v.  Bank,  28  W.  Va.  351. 


HOMICIDE.  .  243 

CHAPTER  38. 
HOMICIDE. 

I.     MURDER  —  ITS    ELEMENTS    AND    ITS    IN- 
CIDENTS. 

II.     MANSLAUGHTER  -  -  VOLUNTARY    AND     IN- 
VOLUNTARY. 

III.     EXCUSE  AND  JUSTIFICATION. 
IV.     DEGREES     OF     OFFENSES     AND     PUNISH- 
MENTS IMPOSED. 

I.     MURDER  —  ITS    ELEMENTS    AND    ITS    IN- 
CIDENTS. 

a.  Necessity  for  establishing  homicide. 

b.  Same — Whether  murder  or  suicide. 

c.  Material  allegations  of  indictment — Necessity  for 

proving. 

d.  Murder  in  the  first  degree — Proof  required  to  con- 

vict of. 

e.  How  murder  in  second  degree  elevated  to  murder  in 

first  degree. 

f.  Same. 

g.  Intent  to  kill — Presumption  as  to. 
h.     Same — Extenuating  circumstances. 

i.     Implied  malice — When  malice  may  be  inferred,  ffl 

j.     Same — Implied   willfulness,   deliberation   and   pre- 
meditation. 

k.     Duration  of  malice. 

1.    Provoking  the  affray — Seeking  deadly  combat, 
m.     Assault  brought  on  by  third  party — Intoxication  of 
accused. 

n.     Same — Character  of  assault  made  by  deceased. 


244  HOMICIDE. 

o.     Assault  on  another  in  addition  to  that  made  upon 

deceased. 

p.     Conspiracy — Murder  resulting  from, 
q.     Same — Intent  of  and  acts  done  by  conspirators. 

a.  Necessity  for  establishing  homicide. 

The  court  instructs  the  jury  that  if  they  entertain  any 
reasonable  doubt  from  the  evidence  as  to  whether  - 
was  murdered  or  not,  they  should  find  the  defendant  not 
guilty.    State  v.  Ice,  34  W.  Va.  251. 

b.  Whether  murder  or  suicide. 

The  court  instructs  the  jury  that  unless  they  believe 
beyond  a  reasonable  doubt  that  the  prisoner  killed  the 
deceased,  and  that  the  deceased  did  not  kill  herself,  then 
the  jury  must  acquit  the  prisoner.  State  v.  Kerns,  47  W. 
Va,  270. 

c.  Material  allegations  of  indictment — Necessity  for  prov- 

ing. 

The  court  instructs  the  jury  that  the  burden  of  proof 
rests  upon  the  prosecution  to  make  out  and  prove  to  the 
satisfaction  of  the  jury,  beyond  all  reasonable  doubt, 
every  material  allegation  in  the  indictment,  and  unless 
that  has  been  done  the  jury  should  find  the  defendant  not 
guilty.  State  v.  Johnson  d-  Devinney,  49  W.  Va.  692. 

d.  Murder  in  the  first  degree — Proof  required  to  con- 

vict of. 

The  court  instructs  the  jury  that  before. they  can  find 
the  defendant  guilty  of  murder  in  the  first  degree  they 

must  believe  from  the  evidence  that  the  killing  of 

was  willful,  deliberate  and  premeditated  and  with  malice 
aforethought,  and  was  the  result  of  cool,  deliberate  judg- 
ment and  previous  malignity  of  heart,  without  justifica- 


HOMICIDE.  245 

tion,  excuse,  palliation  or  alleviation.    State  v.  Manns,  48 
W.  Va.  485. 

e.  How  murder  in  the  second  degree  elevated  to  murder 

in  the  first  degree. 

The  court  instructs  the  jury  that  where  a  homicide  is 
proved  the  presumption  is  that  it  is  murder  in  the  second 
degree.  If  the  state  would  elevate  it  to  murder  in  the 
first  degree  she  must  establish  the  characteristics  of  that 
crime,  and  if  the  prisoner  would  reduce  it  to  manslaugh- 
ter, the  burden  is  on  him.  State  v.  Cain,  20  W.  Va.  709. 

f.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  —  -  came  to  his  death  by  a  pistol 
shot  wound  at  the  hands  of  the  prisoner,  the  presump- 
tion is  that  it  is  murder  in  the  second  degree.  If  the 
state  would  elevate  it  to  murder  in  the  first  degree,  she 
must  establish  the  characteristics  of  that  crime;  and  if 
the  prisoner  would  reduce  it  to  manslaughter,  the  burden 
of  proof  rests  upon  the  prisoner.  State  v.  Hobbs,  37  W. 
Va.  819. 

g.  Intent  to  kill — Presumption  as  to. 

The  court  instructs  the  jury  that  a  man  is  presumed 
to  intend  that  which  he  does  or  which  is  the  immediate 
or  necessary  consequence  of  his  act.  State  v.  Dickey, 
48  W.  Va.  326. 

h.    Same — Extenuating  circumstances. 

The  court  instructs  the  jury  that  a  man  is  presumed 
to  intend  that  which  he  does  or  which  is  the  immediate 
or  necessary  consequence  of  his  own  act,  and  if  the 
prisoner,  with  a  deadly  weapon  in  his  possession,  with- 
out any  or  upon  very  slight  provocation,  gave  the  de- 
ceased a  mortal  wound,  he,  the  prisoner,  is  prima  facie 


246  HOMICIDE. 

guilty  of  willful,  deliberate  and  premeditated  killing,  and 
the  necessity  rests  upon  him  of  showing  extenuating  cir- 
cumstances and  unless  he  proves  such  extenuating  circum- 
stances, or  the  circumstances  appear  from  the  case  made 
by  the  state,  he  is  guilty  of  murder  in  the  first  degree. 
State  v.  Davis,  52  W.  Va.  225. 
(See  the  Cain  case,  20  W.  Va.  679.) 

i.    Implied  malice — When  malice  may  be  inferred. 

The  court  instructs  the  jury  that  to  convict  one  of 
murder  it  is  not  necessary  that  malice  should  exist  in  the 
heart  of  the  accused  against  the  deceased.  If  the  accused 
was  guilty  of  striking,  with  a  deadly  weapon,  another, 
and  of  killing  him,  the  intent,  the  malice  and  willfulness, 
deliberation  and  premeditation,  may  be  inferred  from  the 
act;  and  such  malice  may  not  be  directed  against  any 
particular  person,  but  such  as  shows  a  heart  regardless 
of  social  duty  and  fatally  bent  on  mischief.  State  v.  Welch, 
36  W.  Va.  697. 

j.    Same — Implied  willfulness,  deliberation  and  premedi- 
tation. 

The  court  instructs  the  jury  that  to  convict  one  of 
murder  it  is  not  necessary  that  malice  should  exist  in  the 
heart  of  the  accused  against  the  deceased.  If  the  jury 
believe  from  the  evidence  that  the  prisoner  was  guilty  of 
cutting,  with  a  deadly  weapon,  the  deceased,  and  of  kill- 
ing her,  the  intent,  the  malice  and  the  willfulness,  deliber- 
ation and  premeditation  may  be  inferred  from  the  act,  and 
such  malice  may  not  be  directed  against  any  particular 
person,  but  such  as  shows  a  heart  regardless  of  social  duty 
and  fatally  bent  on  mischief.  State  v.  Tucker,  52  W.  Va, 
431. 

k.    Duration  of  existence  of  malice. 

The  court  instructs  the  jury  that  there  is  no  particular 


HOMICIDE.  247 

period  during  which  it  is  necessary  that  the  malice  should 
have  existed  or  the  prisoner  should  have  contemplated  the 
homicide.  If  the  intent  to  kill  is  executed  the  instant  it 
springs  into  the  mind,  the  offense  is  as  truly  murder  as 
if  it  had  dwelt  there  for  a  longer  period.  State  v.  Welch, 
36  W.  Va.  701. 

1.    Provoking  the  affray — Seeking  deadly  combat. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  prisoner, 
armed  with  a  -  — ,  (deadly  weapon),  sought  the  de- 
ceased with  the  view  of  provoking  a  difficulty  with  him, 
or  with  the  intent  of  having  a  fray  with  him,  for  the 
purpose  of  killing  him,  and  a  difficulty  did  ensue,  he  can- 
not, without  some  proof  of  a  voluntary  change  of  con- 
duct or  action  on  his  part,  excuse  the  killing  of  the  de- 
ceased upon  the  ground  that  the  deceased  fired  the  first 
shot,  for  the  law  will  not  hold  him  guiltless,  who  by  seek- 
ing a  combat  and  continuing  therein,  brings  upon  him- 
self the  necessity  of  killing  his  fellow-man,  upon  the  prin- 
ciple that  one  cannot  knowingly  and  wrongfully  bring 
upon  himself  the  very  necessity  which  he  sets  up  for  his 
defense.  State  v.  Hatfield,  48  W.  Va.  572. 

m.    Assault  brought  on  by  third  party — Intoxication  of 

accused. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  — ,  the  brother  of  the  prisoner,  was 
in  fault  and  by  his  fault  brought  about  the  assault  by  the 
deceased  upon  him,  then  said  —  — ,  (brother  of  the 
prisoner),  was  bound  to  retreat  as  far  as  he  could,  un- 
less prevented  by  the  fierceness  of  the  attack  threatened 
by  the  deceased,  before  the  prisoner  was  justifiable  in  tak- 
ing the  life  of  deceased  in  order  to  save  the  life  of , 

(his  brother),  or  to  protect  him  from  great  bodily  harm; 
unless  the  jury  believe  from  the  evidence  that  the  said 


248  HOMICIDE. 

— ,  (brother  of  the  prisoner),  was  so  drunk  as  to  be 
mentally  incapable  of  knowing  it  was  his  duty  to  retreat, 
or  physically  unable  to  retreat.  State  v.  Greer,  22  W.  Va. 

818. 


n.    Same — Character  of  assault  made  by  deceased. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  said  -  — ,  (brother  of  the  prison- 
er), provoked  the  deceased  to  make  an  assault  upon  him 
and  such  assault  was  intended  by  the  deceased  to  be  a 
mere  common  trespass  upon  the  person  of  said  -  — , 
(brother  of  the  prisoner),  and  it  so  appeared  to  the  prison- 
er, then  the  prisoner  was  not  justified  in  taking  the  life 
of  the  deceased  to  protect  the  said  -  -  from  such  as- 
sault or  trespass.  State  v.  Grecr,  22  W.  Va.  818. 

o.    Assault  on  another  in  addition  to  that  made  upon 

deceased. 

The  court  instructs  the  jury  that  in  determining  the 
guilt  or  innocence  of  the  prisoner  for  the  shooting  of 
—  on  the  —  —  day  of  -  — ,  18 — ,  they  cannot  con- 
sider the  shooting  of  -  -  (another),  upon  his  wagon, 
except  in  so  far  as  may  tend  to  explain  the  prisoner's  act 
in  shooting  or  shooting  at  the  deceased,  as  aforesaid. 
State  v.  Evans,  33  W.  Va.  423. 

p.     Conspiracy — Murder  resulting  from. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  a  conspira- 
cy was  formed  between  the  prisoner  and  other  persons, 
whose  names  are  unknown,  that  the  purpose  of  that  con- 
spiracy was  to  murder  -  — ,  and  that  pursuant  to  that 
conspiracy,  the  unknown  members  of  the  conspiracy,  or 
some  of  them,  killed  said  -  — ,  and  that  the  kill- 
ing was  done  with  malice  aforethought,  either  expressed 
or  implied,  and  that  the  prisoner  was  present  at  the  time 


HOMICIDE.  249 

-  was  killed,  and  aided  by  acts,  or  encouraged  by 
words  or  gestures,  those  actually  engaged  in  said  kill- 
fng,  then  said  prisoner  was  a  principal  in  the  killing 
and  murder.  State  v.  Morgan.,  35  W.  Va.  274. 

q.    Same — Intent  of  and  acts  done  by  conspirators. 

The  court  instructs  the  jury  that  even  if  you  believe 
that  before  —  — ,  -  — ,  18 — ,  the  deceased,  the  witness, 
— ,  the  witness  -  -  and  the  witness  -  — ,  had 
threatened,  kicked,  beat,  bruised  and  assaulted  the  de- 
fendants ;  yet  if  you  further  believe  from  all  the  evidence 
that  the  defendants  followed  the  deceased  and  those  who 
were  with  him  on  said  -  —  afternoon,  down  - 
street,  from  a  point  above  -  -  street  to  a  point  near 
the  -  -  mentioned  in  evidence,  with  the  felonious  in- 
tent to  take  the  life  of  deceased  and  there,  without  further 
provocation,  justification  or  legal  excuse  shot  and  killed 
the  deceased  as  charged  in  the  indictment,  then  it  is 
your  duty  to  find  them  guilty  of  murder  in  the  first  degree. 
State  v.  Johnson  &  Devinney,  49  W.  Va.  692. 

II.  MANSLAUGHTER  --  VOLUNTARY  AND  IN- 
VOLUNTARY. 

a.  Voluntary  manslaughter — Definition  of. 

b.  Passion  sufficient  to  reduce  homicide  to  manslaugh- 

ter. 

c.  What  necessary  to  reduce  homicide  to  manslaugh- 

ter. 

d.  Involuntary  manslaughter — Accidental  killing. 

a.    Voluntary  manslaughter — Definition  of. 

The  court  instructs  the  jury  that  voluntary  manslaugh- 
ter is  where  the  act  causing  death  is  committed  in  the  heat 
of  a  sudden  passion  caused  .by  provocation.  And  they  are 
further  instructed  that  if  they  believe  from  the  evidence 


050  HOMICIDE. 

that  the  defendant,  in  the  heat  of  sudden  passion,  caused 
by  provocation,  killed  -  — ,  at  the  time  and  place  alleged 
in  the  indictment,  they  should  find  the  defendant  guilty 
of  voluntary  manslaughter,  unless  they  further  believe 
from  the  evidence  that  the  defendant  believed,  and  had 
reason  to  believe  that  the  blow  which  resulted  in  -  — 's 
death  was  necessary  to  protect  his  own  life  or  to  protect 
himself  from  great  bodily  harm,  and  that  the  necessity 
of  inflicting  said  blow  was  not  brought  about  by  defend- 
ant's own  conduct.  State  v.  Dickey,  48  W.  Va.  326. 

b.  Passion  sufficient  to  reduce  homicide  to  manslaughter. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  on  the  day  that  -  -  was  killed  and 
before  he  was  killed,  the  prisoner  and  one  -  -  went  to 
the  machine  shops  referred  to  in  the  evidence  and  that 
the  prisoner  went  there  at  the  request  of  said  -  -  as 
detailed  in  his  evidence,  and  that  after  the  prisoner  got 
to  the  said  machine  shops,  he  became  engaged  in  a  quarrel 
with  the  deceased  which  resulted  in  a  fight  between  them, 
and  that  while  engaged  in  said  quarrel  and  fight,  the  said 
deceased  and  the  prisoner  were  excited,  angry  and  that 
their  passions  were  aroused,  and  that  in  said  fight,  while 
the  prisoner  was  excited,  angry  and  his  passions  aroused, 
he  shot  and  killed  the  said  -  — ,  they  cannot  find  the 
prisoner  guilty  of  anything  higher  than  voluntary  man- 
slaughter. State  v.  Dodds,  54  W.  Va.  294. 

c.  What  required  to  reduce  homicide  to  manslaughter. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  -  —  came  to  his  death  by  a  pistol  shot 
wound  at  the  hands  of  the  prisoner,  the  presumption  is 
that  it  is  murder  in  the  second  degree.  If  the  state  would 
elevate  it  to  murder  in  the  first  degree,  she  must  establish 
the  characteristics  of  that  crime;  and  if  the  prisoner 


HOMICIDE.  251 

would  reduce  it  to  manslaughter,    the   burden    of    proof 
rests  upon  the  prisoner.    State  v.  Hobbs,  37  W.  Va.  819. 

d.    Involuntary  manslaughter — Accidental  killing. 

The  court  instructs  the  jury  that  accidental  killing  is 
not  such  a  matter  of  defense  as  throws  upon  the  prisoner 
the  burden  of  proving  it  by  a  preponderance  of  the  evi- 
dence ;  that  it  is  the  duty  of  the  state  to  allege  and  prove 
that  the  prisoner  killed  -  -  intentionally  or  willfully, 
and  if  the  evidence  in  this  case  taken  altogether,  raises 
in  the  minds  of  the  jury  a  reasonable  doubt  as  to  whether 
the  prisoner  killed  -  —  intentionally  or  accidentally, 
they  should  not  find  the  prisoner  guilty  of  anything 
higher  than  involuntary  manslaughter  or  assault  and 
battery.  State  v.  Dodds,  54  W.  Va.  293. 

III.     EXCUSE  AND  JUSTIFICATION. 

1.  RIGHT  TO  KILL  IN  DEFENSE  OP  PERSON. 

2.  WHEN  PLEA  OF  SELF  DEFENSE  NOT  AVAILABLE. 

3.  RIGHT  TO  KILL  IN  DEFENSE  OF  FAMILY  OR  HABITATION. 

4.  RIGHT  TO  KILL  IN  DEFENSE  OF  ANOTHER. 

5.  RIGHT  TO  KILL  TO  PREVENT  A  FELONY. 

6.  INTOXICATION  AND  INSANITY. 

7.  AGE  FOR  CAPACITY  TO  COMMIT  CRIME. 

1.      RIGHT  TO  KILL  IN  DEFENSE  OF  PERSON. 

a.  Imininency  of  danger. 

b.  Danger  need  not  be  real  but  apparent. 

c.  Accused  to  judge  of  imminence  of  danger. 

d.  Apprehension  of  danger — What  must  be  based  on. 

e.  Mutual  combat — Death  resulting   from — What   ac- 

cused must  show. 

f.  Fresh  provocation — Old   grudge   between   the   par- 

ties. 


252  HOMICIDE. 

g.     Good  character  of  accused, 
h.     Burden  of  proof, 
i.     Same — What  prosecution  required  to  prove. 

a.  Imminence  of  danger. 

The  court  instructs  the  jury  that  if  they  are  satisfied 
from  the  evidence  that  the  deceased,  armed  with  a  -  — , 
attacked  the  defendant,  and  that  the  defendant  had  rea- 
sonable cause  to  believe  and  fear,  and  that  he  did  believe 
and  fear  that  great  bodily  harm  was  about  to  be  inflicted 
on  him,  and  that  under  the  influence  of  such  belief  and 
fear,  he  fired  the  said  shot  with  intent  to  defend  or  pro- 
tect himself,  then  he  is  not  guilty.  State  v.  Hobbs,  37  W. 
Va.  821. 

b.  Danger  need  not  be  real,  but  apparent. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  prisoner,  being  himself  without 
fault,  was  attacked  by  the  deceased  in  such  a  manner  or 
under  such  circumstances  as  to  furnish  reasonable  ground 
for  apprehending  a  design  to  take  away  his  life  or  to  do 
him  great  bodily  harm,  and  there  was  reasonable  grounds 
for  believing  the  danger  imminent  that  such  design  would 
be  accomplished  and  the  said  prisoner  had  reasonable 
grounds  to  believe  and  did  believe  such  danger  imminent, 
then  he  had  the  right  to  act  upon  such  appearances,  and 
without  retreating  kill  said  -  — ,  if  he  had  reasonable 
grounds  to  believe  and  did  believe  that  such  killing  was 
necessary  in  order  to  avoid  the  apparent  danger,  and  the 
killing  under  such  circumstances  is  excusable,  although 
it  may  afterwards  turn  out  that  the  appearances  were 
false,  and  that  there  was  in  fact  neither  design  to  do  him 
serious  injury  nor  danger  that  it  would  be  done,  but  of 
all  this  the  jury  must  judge  from  all  the  evidence  and 
circumstances  in  the  case.  State  v.  Clark,  51  W.  Va.  468. 


HOMICIDE.  253 

c.  Accused  to  judge  of  the  imminence  of  danger. 

The  court  instructs  the  jury  that  as  to  the  inuninency 
of  the  danger  which  confronted  the  prisoner  and  the 
necessity  of  the  killing,  in  the  first  instance  the  prisoner 
was  the  judge,  but  he  acted  at  his  peril,  as  the  jury  must 
pass  upon  his  action  in  the  premises,  viewing  the  said 
actions  from  the  prisoner's  standpoint  at  the  time  of  the 
killing,  and  if  the  jury  believe  from  all  the  facts  and  cir- 
cumstances in  the  case,  that  the  prisoner  had  reasonable 
grounds  to  believe  and  did  believe  the  danger  imminent, 
and  that  the  killing  was  necessary  to  preserve  his  own 
life,  or  to  protect  him  from  great  bodily  harm,  he  was 
excusable  for  using  a  deadly  weapon  in  his  defense,  other- 
wise he  is  not.  State  v.  Clark,  51  W.  Va.  468. 

d.  Apprehension  of  danger — What  to  be  based  on. 

The  court  instructs  the  jury  that  the  bare  fear  that  a 
man  intends  to  commit  murder  or  other  atrocious  felony, 
however  well  grounded,  unaccompanied  by  any  overt  act 
indicative  of  any  such  intention,  will  not  warrant  killing 
the  party  by  way  of  prevention.  There  must  be  some 
overt  act  indicative  of  imminent  danger  at  the  time,  but 
the  jury  will  judge  whether  the  conduct  and  acts  of  the 
deceased,  -  — ,  at  the  time  of  the  shooting  were  of  such 
a  character  as  to  create  in  the  mind  of  the  prisoner  a  rea- 
sonable fear  that  the  deceased  intended  to  commit  mur- 
der or  other  felony,  or  to  do  the  prisoner  great  bodily 
harm.  Apprehension  of  danger  to  justify  a  homicide, 
ought  to  be  based  not  alone  on  surmises;  but  there  ought 
to  be  coupled  therewith  some  act  on  the  part  of  the  party 
from  whom  danger  was  apprehended,  evidencing  an  im- 
mediate intention  to  carry  into  execution  his  threats  or 
designs;  and  the  jury  are  to  judge  of  the  reasonable 
grounds  for  such  apprehension  on  the  part  of  the  prisoner 
from  all  the  facts  and  circumstances,  as  they  existed  at 
the  time  of  the  killing.  State  v.  Cain,  20  W.  Va.  710. 


254  HOMICIDE. 

e.  Mutual  combat — Death  ensuing  from — What  accused 

must  show. 

The  court  instructs  the  jury  that  where  there  is  a  quar- 
rel between  two  persons  and  both  are  in  fault,  and  a  com- 
bat as  a  result  of  that  quarrel  takes  place,  and  death 
ensues,  in  order  to  reduce  the  offense  to  killing  in  self- 
defense  two  things  must  appear  from  the  evidence  and  cir- 
cumstances of  the  case: — First,  that  before  the  mortal 
blow  was  given,  the  prisoner  declined  further  combat  and 
retreated  as  far  as  he  could  with  safety;  and  secondly, 
that  he  necessarily  killed  the  deceased  in  order  to  preserve 
his  own  life  or  to  protect  himself  from  great  bodily  harm. 
State  v.  Kohne,  48  W.  Va.  337. 

f.  Fresh  provocation — Old  grudge  between  the  parties. 
The  court  instructs  the  jury  that  where  a  homicide  has 

been  committed,  and  it  appears  from  the  evidence  that 
there  was  an  old  grudge  existing  between  the  parties,  but 
at  the  time  of  the  homicide  there  was  a  fresh  and  sudden 
provocation  given  by  the  deceased  to  the  defendant,  then 
the  law  presumes  that  such  killing  was  caused  by  such 
provocation  and  not  due  to  the  old  grudge.  State  v. 
Maim,  48  W.  Va.  485. 

g.  Good  character  of  accused  as  an  element  of  self-de- 

fense. 

The  court  instructs  the  jury  that  the  law  presumes  the 
prisoner  innocent,  and  that  in  determining  the  question  of 
the  defendant's  guilt  or  innocence  in  this  case  it  is  the 
duty  of  the  jury  to  consider  and  weigh  all  the  evidence 
that  has  been  introduced  including  that  tending  to  estab- 
lish the  good  character  of  the  defendant.  State  v.  Mor- 
rison, 49  W.  Va.  218. 

h.    Burden  of  proof. 

The  court  instructs  the  jury  that  where  a  homicide  is 


HOMICIDE.  255  ' 

proven  by  the  use  of  a  deadly  weapon,  and  the  plea  of  self- 
defense  is  relied  upon,  the  burden  of  proving  such  de- 
fense rests  upon  the  prisoner,  and  to  avail  him,  the  facts 
and  circumstances  showing  such  defense  must  be  estab- 
lished by  a  preponderance  of  the  evidence.  State  v.  Hat- 
field,  48  W.  .Va.  571. 

i.    Same — What  prosecution  required  to  prove. 

The  court  instructs  the  jury  that  although  upon  a  trial 
for  murder,  where  the  defendant  relies  upon  self-defense, 
in  justification  of  the  killing,  the  burden  is  upon  the 
defendant,  yet  this  in  no  wise  relieves  the  state  from  prov- 
ing all  the  elements  of  murder  if  it  seeks  a  conviction, 
beyond  a  reasonable  doubt,  and  to  the  exclusion  of  every 
other  reasonable  hypothesis,  and  if,  in  the  case  on  trial, 
the  burden  is  upon  the  prisoner  to  prove  that  he  was 
acting  in  self-defense  by  a  preponderance  of  the  evidence, 
yet  this  in  nowise  relieves  the  state,  if  it  seeks  a  convic- 
tion, from  proving  the  prisoner  guilty  beyond  every  rea- 
sonable doubt,  and  to  the  exclusion  of  every  reasonable 
hypothesis,  and  if  the  state  does  not  so  prove  the  de- 
fendant guilty  beyond  every  reasonable  doubt  and  to  the 
exclusion  of  every  other  hypothesis,  they  must  find  the  de- 
fendant not  guilty.  State  v.  Manns,  48  W.  Va.  486. 

'2.      WHEN  PLEA  OP  SELF  DEFENSE  NOT  AVAILABLE. 

a.  When  accused  is  at  fault — Concerning  acts  of  de- 

ceased. 

b.  Same. 

c.  Previous  threats — When  they  do  not  justify  homi- 

cide. 

d.  Same — Must  be  accompanied  by  overt  acts. 

a.    When  accused  is  at  fault — Concerning  acts  of  de- 
ceased. 
The  court  instructs  the  jury  that  if  they  believe  from 


2,r)(J  HOMICIDE. 

the  evidence,  beyond  a  reasonable  doubt,  that  the  pris- 
oner, armed  with  a  -  — ,  approached  the  deceased  while 
he  was  peaceably  standing  on  -  — ,  in  such  a  manner  as 
to  give  the  deceased  reasonable  cause  and  ground  to  ap- 
prehend a  design  on  the  part  of  the  prisoner  to  do  him  some 
great  bodily  injury,  or  to  kill  him,  and  reasonable  cause 
to  believe  and  apprehend  that  there  was  imminent  danger 
of  such  design  being  accomplished,  and  if  the  jury  be- 
lieve that  the  said  -  — ,  (the  deceased),  did  then  and 
there  have  such  apprehension  and  belief,  then  the  de- 
ceased had  then  and  there  a  right  to  procure  a  gun,  shoot 
at,  and  even  to  kill  the  prisoner  in  order  to  save  his  own 
life,  or  to  protect  himself  from  great  bodily  harm  at  the 
hands  of  the  prisoner,  and  if  the  prisoner,  under  such  cir- 
cumstances killed  the  deceased  he  cannot  be  acquitted 
upon  the  plea  of  self-defense,  but  of  all  such  facts  and 
circumstances  the  jury  are  to  judge  from  all  the  evidence 
before  them.  State  v.  Hatfield.  48  W.  Va.  571. 

b.    Same. 

The  court  instructs  the  jury  that  if  they  believe  from, 
the  evidence  that  the  prisoner,  armed  with  a  -  — ,  a 
deadly  weapon,  on  the  -  -  day  of  -  — ,  at  -  — ,  in 
said  county,  approached  the  deceased,  without  fault  on 
the  part  of  the  deceased,  and  then  and  there  applied  to 
said  deceased  epithets  and  insulting  language,  he,  said 
prisoner,  intending  then  and  there,  before  and  at  the  time 
of  approaching  the  said  deceased  and  applying  to  him 
such  epithets  and  insulting  language,  and  by  his  manner 
indicating  to  the  deceased  if  he,  said  deceased,  resented  by 
any  overt  act  such  epithets  and  insulting  language,  to  in- 
stantly kill  deceased,  or  to  inflict  upon  him  great  bodily 
harm,  and  that  while  using  such  epithets  and  insulting 
language  a  bystander  pushed  or  led  away  said  prisoner, 
involuntarily  on  the  part  of  the  prisoner,  and  against  his 
will,  to  a  distance  of  —  -  feet  from  the  place  where  the 


HOMICIDE.  257 

prisoner  had  commenced  the  use  of  such  epithets  and 
insulting  language,  and  that  the  prisoner  while  so  being 
led  away  still  continued  to  have  such  intention  and  killed 
the  deceased  while  making  an  overt  act  toward  the  pris- 
oner, indicating  to  said  prisoner  an  intention  to  shoot 
the  prisoner  or  to  inflict  upon  him  great  bodily  harm, 
then  the  prisoner  cannot  rely  upon  self-defense  as  a 
justification  for  the  killing  of  said  -  — .  State  v.  Hat- 
ficld,  48  W.  Va.  572. 

c.  Previous  threats — When  they  do  not  justify  homicide. 
The  court  instructs  the  jury  that  previous  threats  or 

acts  of  hostility,  however  violent  they  may  be,  will  not 
justify  a  person  in  seeking  and  slaying  his  adversary. 
State  v.  Allen,  45  W.  Va.  75. 

d.  Same — Must  be  accompanied  by  overt  acts. 

The  court  instructs  the  jury  that  the  fact  of  one  person 
having  threatened  to  take  the  life  of  another,  or  to  inflict 
upon  him  a  great  bodily  injury,  will  not  excuse  the  per- 
son so  threatened  in  becoming  the  aggressor,  and  with 
deadly  weapon  assault  the  person  making  such  threats, 
and  that  although  the  jury  may  believe  from  the  evidence 
that  deceased,  in  his  lifetime,  had  made  threats  to  take 
the  life  of  the  prisoner  or  to  inflict  upon  him  great  bodily 
harm,  the  fact  of  making  such  threats  towards  the  pris- 
oner will  not  justify  a  verdict  of  acquittal,  unless  the 
jury  further  find  that  at  the  time  the  deceased  was  shot, 
he  was  making  overt  acts  towards  the  prisoner,  indicative 
of  an  intention  to  carry  such  threats  into  immediate 
execution,  and  that,  by  reason  of  such  threats  and  overt 
acts,  the  prisoner  believed  that  it  was  necessary  then  and 
there  to  shoot  with  a  deadly  weapon  the  said  -  — ,  the 
deceased,  in  order  to  save  his  (the  prisoner's)  life,  or  to 
protect  him  from  great  bodily  harm.  State  v.  Staley,  45 
W.  Va.  796. 


258  HOMICIDE. 

3.      RIGHT  TO  KILL  IN  DEFENSE  OF  FAMILY  OE  HABITATION. 

a.  Sac-redness  of  one's  home — Right  to  defend. 

b.  Same — Right  to  repel  force  by  force  in  defense  of. 

c.  Same — Apparent  or  necessary  force  required. 

d.  Same — Fierceness  of  assault — Fear  of  great  bodily 

harm. 

a.  Sacredness  of  one's  home — Right  to  defend. 

The  court  instructs  the  jury  that  a  man's  house  is 
sacred,  and  his  own  castle,  to  himself  and  family,  and 
that  if  attacked  in  his  own  house  by  a  person  armed  with 
a  dangerous  weapon,  and  he  has  reason  to  believe,  and 
does  believe,  he  is  in  danger  of  losing  his  life,  or  in  danger 
of  suffering  great  bodily  harm,  at  the  hands  of  his  assail- 
ant, he  is  not  required  to  retreat,  but  may  defend  his  life 
or  person  by  taking  the  life  of  his  assailant  without  re- 
treating. State  v.  Hobbs,  37  W.  Va.  820. 

b.  Same — Right  to  repel  force  by  force  in  defense  of. 
The  court  instructs  the  jury  that  the  dwelling  house 

where  a  man  lives  is  his  home  or  castle,  and  that  he  may 
repel  force  by  force  in  the  defense  of  his  person,  habita- 
tion or  property  against  one  who  manifestly  intends  and 
endeavors  by  violence  to  commit  a  known  felony  on  either, 
and  in  such  case  he  is  not  bound  to  retreat,  but  may  pur- 
sue his  adversary  until  he  has  secured  himself  from  all 
danger,  and  if  he  kill  his  adversary  in  so  doing  it  is  justifi 
able  self-defense.  State  v.  Manns,  48  W.  Va.  486. 

c.  Same — Apparent  or  necessary  force  required. 

The  court  instructs  the  jury  that  a  person  has  a  right  to 
repel  force  by  force  in  the  defense  of  his  person,  his  fam- 
ily or  his  habitation,  and  if  in  so  doing  he  use  only  so 
much  force  as  the  necessity  or  apparent  necessity  of  the 


HOMICIDE.  259 

case  requires,  he  is  not  guilty  of  any  offense,  although  he 
kill  his  assailant  in  so  doing.    State  v.  Manns,  48  W.  Va. 

486. 

d.    Same — Fierceness  of  the  assault — Fear  of  great  bodily 

harm. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  house  in  which  defendant  lived  was 
assaulted  by  the  deceased,  and  that  the  deceased  shot  at 
and  into  the  said  house  where  the  defendant  and  his 
family  were  at  supper,  and  if  they  further  believe  from 
the  evidence  that  the  prisoner  at  the  time  had  reasonable 
cause  to  believe  that  he,  or  any  member  of  his  family  were 
in  danger  of  losing  their  lives  or  suffering  great  bodily 
harm  at  the  hands  of  the  deceased,  then  the  defendant 
had  a  right  to  defend  his  house,  even  to. the  extent  of 
taking  the  life  of  the  deceased,  and  if  you  further  believe 
from  the  evidence  that  the  defendant  killed  the  deceased, 
believing  from  the  surrounding  circumstances  and  the  con- 
duct of  the  deceased  and  the  fierceness  of  the  assault  of 
the  deceased,  that  it  was  necessary  so  to  do  to  protect  his 
house  and  his  family,  then  they  should  find  the  defendant 
not  guilty.  State  v.  Manns,  48  W.  Va.  486. 

4.      RIGHT  TO  KILL  IN  DEFENSE  OF  ANOTHER. 

a.    Concerning  character  of  assault  made  by  deceased. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  said  -  — ,  (brother  of  the  pris- 
oner), provoked  the  deceased  to  make  an  assault  upon 
him  and  such  assault  was  intended  by  the  deceased  to  be 
a  mere  common  trespass  upon  the  person  of  said  -  — , 
(brother  of  the  prisoner),  and  it  so  appeared  to  the  pris- 
oner, then  the  prisoner  was  not  justified  in  taking  the 
life  of  the  deceased  to  protect  said  -  -  from  such  as- 
sault or  trespass.  State  v.  Greet;  22  W.  Va.  818. 


HOMICIDE. 


5.  RIGHT  TO  KILL  TO  PREVENT  A  FELONY. 

a.     Unlawful  trespass  upon  the  property  of  another. 

The  court  instructs  the  jury  that  the  owner  or  occupant 
of  property  in  the  lawful  possession  of  the  same  has  a 
right  to  use  as  much  force  as  is  necessary  to  prevent  an 
•flnlawful  or  forcible  trespass  upon  the  same,  and  if  they 
find  that  the  defendant  was  standing  upon  his  own 
ground,  or  upon  ground  of  which  he  was  in  lawful  pos- 
session, and  that  in  attempting  to  force  a  passage  over 
the  same,  if  they  so  find,  the  deceased  was  violating  the 
law  and  was  a  trespasser  with  the  intent  and  with  the 
means  of  committing  a  felony,  and  was  attempting  to 
commit  a  felony  against  the  person  or  property  of  the 
prisoner,  then  the  defendant,  as  owner  or  occupier  of  the 
land,  if  they-  so  find,  might  repel  force  by  force  to  the 
extent  of  killing  the  said  -  —  ,  if  necessary  so  to  do  to 
prevent  the  commission  of  said  felony,  and  such  killing 
would  be  excusable.  State  v.  Clark,  51  W.  Ya.  468. 

6.  INTOXICATION  AND  INSANITY. 

a.  Intoxication  —  Capacity  for   knowing   consequences 

of  act. 

b.  Same  —  Capacity  for  premeditation. 

c.  Same  —  When  the  evidence  tends  to  prove  mental  in- 

capacity. 

d.  Same  —  Of  person  in  whose  defense  homicide  com- 

mitted. 

e.  Insanity  —  Sufficient  power  of  mind   to   distinguish 

right  from  wrong. 

a.    Intoxication  —  Capacity  for  knowing  consequences  of 

act. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  beyond  a  reasonable  doubt,  that  the  prisoner, 


HOMICIDE.  261 

though  intoxicated  at  the  time  of  the  firing  of  the  shot, 
which  caused  the  death  of  the  deceased,  was  capable  of 
knowing  the  nature  and  consequences  of  his  act,  and  if  he 
did  know,  then  that  he  knew  he  was  doing  wrong,  and 
that  so  knowing  he  fired  the  shot  at  the  deceased  with 
the  willful,  deliberate  and  premeditated  purpose  of  kill- 
ing him,  they  will  find  the  prisoner  guilty  of  murder  in 
the  first  degree.  State  v.  Robinson,  20  W.  Va.  743. 

b.  Same — Capacity  for  premeditation. 

The  court  instructs  the  jury  that  if  they  believe  from 
all  the  circumstances  in  the  case  that  the  prisoner  will- 
fully, maliciously,  deliberately  and  premeditatedly  killed 
the  deceased,  they  should  find  him  guilty  of  murder  in  the 
first  degree,  although  he  was  intoxicated  at  the  time  of  the 
killing.  State  v.  Douglass,  28  W.  Va.  301. 

c.  Same — When  the  evidence  tends  to  prove  the  mental 

incapacity. 

The  court  instructs  the  jury  that  where  a  statute  estab- 
lishes degrees  of  the  crime  of  murder,  and  provides  that 
all  willful,  deliberate  and  premeditated  killing  shall  be 
murder  in  the  first  degree,  the  evidence  given  on  the  trial 
tending  to  prove  that  the  accused  was  intoxicated  at  the 
time  of  the  killing,  is  competent  for  the  consideration  of 
the  jury  upon  the  question  whether  the  accused  was  in 
such  a  condition  of  mind  as  to  be  capable  of  deliberation 
and  premeditation.  State  v.  Hertzog,  55  W.  Va.  83. 

d.  Same — Of  person  in  whose  defense  homicide  com- 

mitted. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  — ,  the  brother  of  the  prisoner,  was 
in  fault,  and  by  his  fault  brought  about  the  assault  by  the 
deceased  upon  him,  then  said  -  — ,  brother  of  the  pris- 
oner, was  bound  to  retreat  as  far  as  he  could,  unless  pre- 


HOMICIDE. 


vented  by  the  fierceness  of  the  attack  upon  him  threat- 
ened by  the  deceased,  before  the  prisoner  was  justifiable 
in  taking  the  life  of  the  deceased  in  order  to  save  the  life 
of  his  brother  or  to  protect  him  from  great  bodily  harm, 
unless  the  jury  believe  from  the  evidence  that  said  -  —  , 
brother  of  the  prisoner,  was  so  drunk  as  to  be  mentally  in- 
capable of  knowing  that  it  was  his  duty  to  retreat,  or  was 
physically  unable  to  do  so.  State  v.  Qreer,  22  W.  Va.  818. 

e.    Insanity  —  Sufficient  power  of  mind  to  distinguish  be- 

tween right  and  wrong. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  —  murdered  -  —  ,  as  charged  in 
the  indictment,  and  had  at  the  time  sufficient  power  of 
mind  to  distinguish  between  the  right  and  the  wrong  of 
such  an  act,  although  they  believe  he  suffered  from  mental 
aberration  as  to  other  matters,  the  verdict  ought  to  be 
guilty.  State  v.  Haier,  36  W.  Va.  770. 

7.       AGE  FOR  CAPACITY  TO  COMMIT  CRIME. 

a.    How  question  determined. 

The  court  instructs  the  jury  that  to  establish  capacity 
to  commit  crime  in  a  person  over  seven  and  under  four- 
teen years,  it  is  not  necessary  that  any  witness  shall  state 
that  he  has  such  capacity,  but  the  same  may  be  shown  to 
exist  by  the  appearance  and  general  conduct  of  the  ac- 
cused, and  by  his  testimony  as  a  witness  before  the  jury. 
State  v.  Williams,  40  W.  Va.  269. 

IV.     DEGREES  OF  OFFENSE—  PUNISHMENTS    IM- 
POSED. 

a.    Whether  murder  in  first  or  second  degree  —  Additional 

findings. 
The  court  instructs  the  jury  that  if  they  find  the  pris- 


HOUSE  OF  ILL  FAME.  263 

oner  guilty  as  charged  in  the  indictment,  they  shall 
further  find  whether  he  is  guilty  of  murder  in  the  first  or 
in  the  second  degree.  If  they  find  him  guilty  of  murder  in 
the  first  degree,  they  may,  in  their  discretion,  further  find 
that  the  prisoner  be  punished  by  confinement  in  the  peni- 
tentiary, and  if  such  further  finding  be  not  added  to  such 
verdict,  the  judgment  thereupon  rendered  by  the  court 
will  be  that  the  prisoner  be  punished  with  death,  and  if 
such  further  finding  is  added,  the  judgment  thereupon 
rendered  by  the  court  will  be  that  the  prisoner  be  con- 
fined in  the  penitentiary  during  his  life.  If  the  jury  find 
the  prisoner  guilty  of  murder  in  the  second  degree,  as 
charged  in  the  indictment,  the  punishment  imposed  upon 
the  prisoner  will  be  confinement  in  the  penitentiary  not 
less  than  five  nor  more  than  eighteen  years.  State  v.  Hat- 
field,  48  W.  Va.  573. 


CHAPTER  39. 
HOUSE  OF  ILL  FAME. 

a.  Contract  of  sale — Occupancy  of  property  under. 

b.  Same — Parting  with  ownership  by  former  owner. 

c.  Same — Knowledge  of  former  owner  of  purpose  for 

which  house  was  to  be  used. 

a.    Contract  of  sale — Occupancy  of  property  under. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  and  -  —  made  and  en- 
tered into  the  contract  of  sale  introduced  in  evidence,  of 
the  property  named  in  the  indictment,  and  further  be- 
lieve that  for  one  year  next  preceding  the  finding  of  the 
indictment  in  this  case  the  said  occupied  said 


264  HOUSE  OF  ILL  FAME. 

property  under  said  contract  of  sale,  then  the  jury  must 
flnd  the  deefndant  not  guilty.  State  v.  Emblem,  44  W. 
Va.  523. 

b.  Same — Parting  with  ownership  by  former  owner. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  contract  introduced  in  evidence  be- 
tween the  defendant  and  -  — ,  for  the  property  men- 
tioned in  the  indictment,  was  a  bona  fide  contract  of  sale, 
and  that  under  said  contract  the  said  defendant  parted 
with  the  ownership  and  control  of  said  property,  then 
the  jury  must  find  the  defendant  not  guilty.  State  v. 
Emblem,  56  W.  Va.  681. 

c.  Same — Knowledge  of  former  owner  of  purpose  for 

which  house  was  to  be  used. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  contract  of  sale  introduced  in  this 
case  operated  between  the  parties  thereto  as  a  bona  fide 
sale  of  the  property  mentioned  in  the  indictment,  then 
even  if  they  believe  that  the  defendant  knew  that  the 
property  was  to  be  used  as  a  house  of  ill-fame,  the  jury 
must  find  the  defendant  not  guilty.  State  v.  Emblem,  58 
W.  Va.  681. 


INSURANCE.  265 

CHAPTER  40. 
INSURANCE. 

I.  FIRE  INSURANCE. 
II.  LIFE  INSURANCE. 
III.  ACCIDENT  INSURANCE. 

I.  FIRE  INSURANCE. 

1.  THE  POLICY  OR  CONTRACT. 

2.  PROOF  OF  LOSS. 

3.  WAIVER  OF  RIGHT  TO  AVOID  PAYMENT  OF"  LOSS. 

1.      THE  POLICY  OR  CONTRACT. 

a.  Written  agreement  exclusive  evidence  of  contract. 

b.  Mistake  as  to  party  insured — Knowledge  of  insurer 

as  to. 

c.  Same. 

d.  Condition  of  property  insured — Knowledge  of  in- 

surer as  to. 

e.  Change  in  date  covering  policy  after  loss  occurs. 

f.  Title  or  ownership  of  property — Knowledge  of  in- 

surer as  to. 

g.  Same — Partnership  in  profits  and  losses. 

h.     Incumbrances  upon   property  —  Knowledge  of  in- 
surer as  to. 

i.     Same — Absence  of  fraud  upon  part  of  insured, 
j.     Same — Rebuilding  property  "destroyed, 
k.     Same — Assignment  of  policy  to  secure  mortgage. 
1.     Fraud  or  misrepresentation  as  to  name  of  insured, 
m.     Fraud  or  misrepresentations  by  insured  as  to  value 
of  property. 


266  INSURANCE. 

n.     Same — As  to  incumbrances. 

o.     Fraudulently  altering  receipt  for  premiums. 

p.     Increase  of  risks — Avoidance  of  policy  because  of. 

q.     Additional  insurance — Condition  of  policy  against. 

r.     Same — Knowledge  or  consent  of  insurer  as  to. 

s.     Same — Illiteracy  of  insured. 

t.     Prior  insurance — Knowledge  of  insurer  as  to. 

u.     Same — Effect  of  prior  policy  being  void. 

v.  Renewal  of  policy — Authority  of  agents — Receipt 
for  renewal. 

w.     Same. 

x.  Books  and  papers — Parol  waiver  of  requirement  as 
to  where  to  be  kept. 

y.     Intentional  burning  property  insured. 

z.  Awards — Repudiation  by  insured  of  award — De- 
mand of  insured  for  second  appraisement. 

a.  Written  agreement  exclusive  evidence  of  contract. 
The  court  instructs  the  jury  that  when  parties  have 

made  a  written  agreement,  the  writing  is  regarded  as  the 
exclusive  evidence  of  the  contract,  and  all  oral  negotia- 
tions and  stipulations  preceding  or  accompanying  the 
execution  of  the  written  agreement  are  merged  in  it,  and 
are  not  admissible  in  evidence,  and  all  such  oral  negotia- 
tions and  stipulations  should  not  be  considered  by  you 
to  contradict  or  vary  the  written  policy  in  this  case. 
Man  pin  v.  Insurance  Co.,  53  W.  Va.  566. 

b.  Mistake  as  to  party  insured — Knowledge  and  acts  of 

agent  of  insurer. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant,  at  the  time  it  issued  the 
policy  in  this  suit,  was  fully  and  honestly  advised  of  all 
the  facts  attending  the  ownership  of  the  property  insured, 
and  that  it  was  left  with  the  defendant,  through  its 


INSURANCE.  267 

agents,  with  such  knowledge  of  all  the  facts,  to  issue  a 
valid  and  legal  policy  upon  said  property,  and  the  said 
policy,  by  mistake  and  error  of  said  agent,  or  his  clerk  or 
employe,  was  issued  in  the  name  of  plaintiff  when  it 
should  have  been  issued  in  the  name  of  his  wife,  then  such 
mistake  does  not  vitiate  said  policy  nor  affect  the  right  of 
the  plaintiff  to  recover  in  this  suit.  Deitz  v.  Insurance 
Co.,  33  W.  Va.  533. 

c.    Same. 

The  court  instructs  the  jury  that  if  they  find  from  the 
evidence  that  at  the  time  the  policy  in  suit  was  executed 
-  was  the  agent  of  the  defendant  company  and  em- 
ployed -  -  in  his  office  to  aid  him  in  the  discharge  of 
his  duties  as  such  agent,  and  that  the  said  -  -  at  the 
instance  of  the  said  agent  examined  the  property  insured 
before  said  insurance  was  taken,  wrote  out  the  policy  in 
suit  and  signed  and  countersigned  the  same  for  the  said 
agent  by  his  business  name  of  -  -  &  Co. ;  received  the 
cash  premium  that  was  paid  and  transacted  the  whole 
business,  so  far  as  the  defendant  is  concerned,  in  taking 
and  completing  said  insurance,  and  if  the  jury  further 
find  from  the  evidence  that  said  -  -  knew  when  trans- 
acting said  business  that  the  property  insured  be- 
longed to  the  wife  of  the  plaintiff;  that  he  had 
been  so  told  before  writing  up  said  policy  by  both 
plaintiff  and  his  wife,  and  that  both  plaintiff  and  his  wife 
relied  upon  him  as  acting  for  the  defendant  to  issue  a 
good  and  valid  policy  of  insurance  upon  said  property; 
that  he  knew  at  the  time  they  so  relied  upon  him,  and  he 
intended  to  issue  the  same  in  the  name  of  the  wife,  but  by 
mistake  on  his  part  issued  the  same  in  the  name  of  plain- 
tiff, then  the  mistake  of  said  -  -  does  not  vitiate  said 
policy  nor  affect  the  plaintiff's  right  to  recover  in  this 
action.  Deitz  v.  Insurance  Co.,  33  W.  Va.  531. 


ogg  INSURANCE. 

d.  Condition  of  property  insured — Knowledge  of  insurer 

as  to. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  agent  of  the  defendant,  who  took 
the  application,  had  at  the  time  a  knowledge  of  the  build- 
ings, and  the  manner  in  which  the  stove  pipe  and  chimney 
were  secured  at  the  time  the  insurance  was  effected,  and 
took  upon  himself  to  fill  up  the  blank  application,  and 
did  so  upon  his  own  information,  then  it  was  not  re- 
quired of  the  plaintiff,  under  the  policy,  to  change  the 
condition  of  the  pipe  and  chimney,  but  he  was  required  to 
keep  them  in  good  order  and  condition,  but  was  not  re- 
quired to  put  them  in  better  order  and  condition  than 
they  were  in  at  the  time  the  insurance  was  made.  Sim- 
iiwns  v.  Insurance  Co.,  8  W.  Va.  491. 

e.  Change  in  date  covered  by  policy  after  loss  occurred. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  policy  which  has  been  introduced 
in  evidence  was  issued  by  the  defendant  on  the  -  -  day 
of  -  — ,  18 — ,  and  was  then  written  so  as  to  cover  the 
period  from  the  -  -  day  of  -  — ,  18 — ,  to  the  -  -  day  of 

— ,  18 — ;  and  if  they  further  believe  that  on  the  - 
day  of  -  — ,  18 — ,  the  agent  of  the  company,  at  the  re- 
quest of  the  agent  of  the  assured,  notified  the  defendant 
company  that  it  was  desired  to  have  the  dates  in  the 
policy  changed  so  as  to  cover  a  period  of  -  — ,  beginning 
on  the  -  -  day  of  -  — ,  18 — ,  and  that  upon  receiving 
such  notice,  the  defendant  company  made  no  objection  to 
the  proposed  change;  and  if  they  further  believe  that  on 
the  -  -  day  of  -  — ,  18 — ,  the  change  was  made  as  pro- 
posed, all  parties  being  in  ignorance  that  the  fire  had  oc- 
curred; and  if  they  further  believe  that  the  said  policy 
was  delivered  to  the  agent  of  the  assured,  and  that  the 
defendant  company  received  and  retained  the  premium 
therefor — then  the  fact  that  the  property  had  burned  at 


INSURANCE.  269 

the  time  when  such  change  was  made  will  not  prevent  a 
recovery  in  this  action  by  the  plaintiff.  Land  Co.  v.  Insur- 
ance Co.,  35  W.  Va.  677. 

f .  Title  or  ownership  of  property — Knowledge  of  insurer 

as  to. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  before  the  issuance  of  the  polhy  read  in 
evidence,  the  duly  authorized  agent  of  the  defendant  who 
took  the  said  policy  and  represented  the  defendant  in 
procuring  the  same  was  fully  informed  of  the  facts  of 
and  concerning  the  plaintiff's  title  and  ownership  of  the 
real  estate  referred  to  in  said  policy,  and  was  informed 
of  the  provisions  of  the  deed  conveying  said  property  to 
the  plaintiff,  and  that  he,  the  said  agent,  then  and  there 
informed  the  representative  of  the  plaintiff  that  the  policy 
should  be  taken  in  the  name  of  the  plaintiff  as  the  owner 
of  said  property,  and  that  the  representative  of  the  plain- 
tiff relying  upon  said  representative  and  agent  of  the  de- 
fendant, assented  to  such  suggestion,  and  that  the  policy 
was  accordingly  so  written  by  the  representative  of  the 
defendant  and  delivered  to  the  plaintiff  and  the  repre- 
sentative of  the  defendant  then  and  there  accepted  and 
received  the  premium  for  the  said  policy,  then  the  de- 
fendant would  not  be  relieved  from  liability  under  said 
policy,  even  if  the  deed  referred  to  only  vested  a  life 
estate  in  the  plaintiff.  Medley  v.  Insurance  Co.,  55  W. 
Va.  364. 

g.  Same — Partnership  in  profits  and  losses. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  arrangement  between  the  assured 
and  this  third  person,  under  which  the  wool  in  con- 
troversy was  bought  and  held,  was  that  expressed  in  the 
letter,  then  there  was  a  partnership  between  the  assured 
and  this  third  person  in  the  profits  or  losses  of  the  trans- 


270  INSURANCE. 

action,  still  the  interest  of  the  assured  in  the  wool  itself 
was  the  entire  sole  and  unconditional  ownership  within 
the  meaning  of  this  policy.  Welch  v.  Insurance  Co.,  23 
W.  Va.  310. 

h.    Incumbrances  upon  property — Knowledge  of  insurer 

as  to. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  before  the  issuance  of  the  policy  of  in- 
surance read  in  evidence  a  trust  lien  on  the  real  estate 
mentioned  existed  in  favor  of  -  — ,  and  that  the  agent 
of  the  defendant  who  acted  in  the  issuance  and  delivery 
of  said  policy  was  informed  and  notified  of  the  existence 
of  said  lien  and  of  the  fact  that  it  remained  unpaid  and 
that  the  said  agent  then  and  there  stated  that  the  fact  of 
the  existence  of  said  lien  made  no  difference,  and  that  he 
issued  said  policy  and  received  the  premium  therefor  with 
full  notice  thereof,  then  the  defendant  would  not  be  re- 
lieved from  liability  on  said  policy  on  account  of  its  ex- 
istence at  its  date  and  delivery  of  the  said  deed  of  trust. 
Medley  v.  Insurance  Co.,  55  W.  Va.  365. 

i.     Same — Absence  of  fraud  on  part  of  insured. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  at  the  time  the  application  was  made 
for  the  policy  in  controversy  the  agent  who  took  said  ap- 
plication wholly  prepared  and  wrote  the  same,  and  that 
at  the  time  the  plaintiff  informed  him  of  the  incumbrance 
upon  said  property,  or  that,  prior  to  said  time,  said  agent 
had  full  knowledge  of  said  incumbrance,  then  and  in  that 
event  the  answer  incorporated  into  said  application, 
though  incorrect  in  regard  to  said  incumbrance,  will 
afford  no  defense  to  said  company  to  this  action,  in  the 
absence  of  fraud  on  the  part  of  plaintiff.  Coles  v.  Insur- 
ance Co.,  41  W.  Va.  264. 


INSURANCE.  271 

j.    Same — Rebuilding  property  destroyed. 

The  court  instructs  the  jury  that  whether  the  policies 

were  delivered  by  -  to  -        -  after  the  fire,  the  said 

-  saying  to  -  -  at  the  time  of  such  delivery  to 
collect  the  insurance  money  and  apply  the  same  to  re- 
building on  the  mortgaged  property,  is  a  question  for  the 
jury,  and  if  they  believe  such  was  the  fact  such  transfer 
of  the  policies  by  -  -  to  —  -  is  not  a  bar  and  has  no 
tendency  to  prevent  the  plaintiff  recovering  in  this  action. 
Bentley  v.  Insurance  Co.,  40  W.  Va.  752. 

k.    Same — Assignment  of  policy  by  insured  to  secure 

mortgage  debt. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  assignment  attached  to  the  face  of 
the  policy  was  made  by  -  -  as  collateral  security  to 
the  plaintiff  for  a  mortgage  debt  on  a  part  of  the  prop- 
erty insured  and  the  assignment  as  written  was  approved 
by  the  defendant  company,  then  the  effect  of  such  assign- 
ment was  to  give  the  plaintiff  a  right  to  recover  in  this 
action  whatever  sum,  after  a  fire  should  occur,  — 
would  have  been  entitled  to  recover  had  no  such  assign- 
ment and  approval  been  made,  with  interest  on  said  sum 
to  the  date  of  the  verdict  from  the  time  it  became  pay- 
able according  to  the  terms  of  the  policy  when  complied 
with  by  said  -  — .  Bentley  v.  Insurance  Co.,  40  W.  Va. 
752. 

1.    Fraud  or  misrepresentations  as  to  name  of  insured. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  insured  or  his  agent  at  the  time  of 
the  making  of  said  policy  knew  or  believed  that  the  agent 
of  the  defendant  supposed  that  J.  T.  was,  in  fact,  the 
person  whose  goods  were  being  insured,  and  neglected  and 
failed  to  correct  his  mistake,  and  thus  misled  him  as  to 


272  INSURANCE. 

the  person  whose  goods  were  actually  insured,  then  such 
policy  would  not  be  a  contract  between  the  plaintiff  and 
the  defendant  company.  Travis  v.  Insurance  Co.,  28  \V. 
Va.  598. 

m.    Fraud  or  misrepresentations  by  insured  as  to  value  of 

property. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  before  and  at  the  time  of  the  making 
and  issuing  of  the  policy  of  insurance  sued  on,  the  plain- 
tiff, or  his  agent  acting  for  him  in  that  behalf,  represented 
and  stated  to  defendant's  agent  who  issued  said  policy 
and  with  whom  said  contract  of  insurance  was  wholly 

made,  that  the  -    -  about  to  be  insured  was  worth  $ , 

and  if  the  jury  further  believe  from  the  evidence  that  the 
said  agent  of  the  said  defendant  relied  upon  said  state- 
ments and  representations  as  to  the  value  of  said  insured 
property  and  issued  said  policy  of  insurance  relying  up- 
on and  confiding  in  said  representations  and  statements, 
and  if  the  jury  should  further  find  from  the  evidence  that 
said  representations  and  statements  were  false  and  were 
known  to  said  -  -  to  be  false,  and  that  said  insured 
property  was  worth  materially  less  than  said  -  — ,  and 
that  this  fact  was  known  to  the  said  -  — ,  (the  in- 
sured), to  be  false,  then  the  court  instructs  the  jury  that 
such  false  representations  and  statements  avoid  the  pol- 
icy, and  the  jury  should  find  for  the  defendant.  Travis  \. 
Insurance  Co.,  28  W.  Va.  589. 

n.     Same — As  to  incumbrances. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  property  insured,  or  a  material  por- 
tion thereof,  was  encumbered  at  the  time  the  application 
in  writing  was  made  by  the  plaintiff  to  the  defendant  for 
the  policy  sued  on,  and  that  he  denied  in  said  application 
the  fact  of  said  encumbrance,  and  they  further  believe 


INSURANCE.  273 

that  in  said  application  and  policy  the  plaintiff  warranted 
the  truth  of  the  statements  and  answers  made  in  said  ap- 
plication, that  then  they  shall  find  for  the  defendant. 
Coles  v.  Insurance  Co.,  41  W.  Va.  264. 

o.     Fraudulently  altering  receipt  for  premiums. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff,  -  — ,  with  fraudulent  in- 
tent, altered  the  receipt  for  $ —  — ,  produced  in  evidence, 
then  they  are  to  deny  him  all  benefit  from  the  said  receipt 
as  evidence  of  a  contract  or  for  any  purpose  whatever. 
Sheppard  v.  Insurance  Co.,  21  W.  Va.  373. 

p.    Increased  risks — Avoidance  of  policy  because  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  additional  use  of  the  store  building 
for  storing  and  vending  farm  implements  and  hardware, 
sash,  doors,  etc.,  without  the  permission  of  the  defendant 
company,  increased  the  risk  to  it,  then  they  shall  find 
for  the  defendant.  Coles  v.  Insurance  Co.,  41  W.  Va.  264. 

q.    Additional  insurance — Condition  of  policy  against. 

The  court  instructs  the  jury  that  although  they  believe 
from  the  evidence  that,  according  to  the  contract  con- 
tained in  the  policy  sued  on,  the  plaintiff  was  inhibited 
from  taking  out  the  policies  in  the  -  -  company  and 
the  -  -  company  (other  companies)  without  the  con- 
sent of  the  defendant  indorsed  on  the  policy  sued  on,' yet 
if  they  further  find  that  said  policies  in  the  said  - 
and  -  —  companies  (other  companies)  contain  a  clause 
in  the  contract  in  said  policies  forfeiting  or  avoiding  said 
policies  if  plaintiff  failed  to  give  notice  to  said  companies, 
or  of  either  prior  or  subsequent  policies  of  insurance  on 
said  property  described  in  the  policy  sued  on,  and  said 
plaintiff  did  effect  either  prior  or  subsequent  insurance 
on  the  property  set  out  in  the  policy  sued  on,  and  failed  to 


1>74  INSURANCE. 

•jive  notice  thereof  to  said  companies,  and  have  their  as- 
sent indorsed  on  said  policies  of  the  -  -  company  and 
the  -  -  company,  then  the  said  subsequent  insurance 
policies  will  not  avoid  the  policy  sued  on.  Wooljtcrt  \. 
Inxnmnce  Co.,  42  W.  Va.  659. 

r.     Same — Knowledge  or  consent  of  insurer  as  to. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  when  the  plaintiff  applied  to  the  agent 
of  the  defendant  for  the  policy  of  insurance  sued  on,  the 
agent  of  the  defendant  told  him  he  could  take  out  addi- 
tional insurance  in  other  companies,  and  plaintiff,  in  pur- 
suance of  such  permission,  did  afterwards  take  out  the 
policies  in  the  -  -  company  and  the  -  -  company 
(other  companies)  then  the  omission  or  failure  of  said 
agent  or  defendant  to  indorse  the  said  permission  or  the 
assent  of  the  defendant  company  on  the  policy  sued  on 
will  not  avoid  said  policy.  Wool  pert  v.  Insurance  Co..  1- 
\V.  Va.  659.  ' 

s.     Same — Illiteracy  of  insured. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  plaintiff  could  not  read  or  write  the 
English  language,  and  he  so  informed  the  agent  of  the 
defendant  when  he  made  application  for  the  policy  sued 
on,  and  that  the  defendant's  agent  then  informed  plain- 
tiff that  he  could  take  out  additional  insurance  in  other 
companies,  and  did  not  inform  him  that  the  assent  of  the 
company  to  such  additional  insurance  must  be  indorsed 
on  the  policy  sued  on,  and  did  not  read  said  policy  to  him, 
and  said  agent  failed  to  indorse  such  assent  on  the  policy. 
then  the  failure  of  plaintiff  to  give  notice  to  the  defendant 
of  subsequent  insurance,  and  have  the  assent  of  the  de- 
fendant indorsed  on  the  policy  sued  on,  will  not  forfeit  or 
avoid  said  policy.  WooJfu'rt  v.  Inxunun-c  Co..  42  W.  Ya. 
660. 


INSURANCE.  275 

t.    Prior  insurance — Knowledge  of  agent  as  to. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  at  the  time  the  plaintiff  applied  for  in- 
surance upon  the  stock  of  goods,  he  informed  the  agent 
of  the  defendant  company  that  he  had  taken  out  previous 
insurance  in  the  -  —  company,  then  the  failure  of  the 
agent  of  the  defendant  to  endorse  this  fact  upon  the  policy 
cannot  avoid  the  policy  sued  on.  Woolpert  v.  Insurance 
Co.,  44  W.  Va.  736. 

u.    Same — Effect  of  prior  policy  being  void. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  policy  issued  to  the  plaintiff  by  the 
-  company  was  a  void  policy,  or  one  upon  which 
there  could  be  no  recovery,  then  the  failure  of  the  plain- 
tiff to  inform  the  defendant  of  the  issuing  of  the  policy 
sued  upon  or  the  taking  out  of  said  policy  in  the  - 
company,  cannot  affect  the  plaintiff's  right  to  recover  in 
this  cause.  Woolpert  v.  Insurance  Co.,  44  W.  Va.  736. 

v.    Renewal  of  policy — Authority  of  agent — Receipt  for 

renewal. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  receipt  for  $ ,  submitted  to  them 

in  evidence  was  executed  by  -  -  and  delivered  to  the 
plaintiff,  that  the  said  -  -  was,  at  the  time  the  receipt 
was  so  given,  the  agent  of  the  defendant  to  transact  the 
business  of  insurance  for  it,  and  as  such  receipted  for 
premiums  known  as  renewal  premiums,  and  shall  further 
believe  from  the  evidence  that  the  said  receipt  was  given 
to  renew  the  policy  in  the  declaration  mentioned,  they 
will  find  for  plaintiff  whatever  amount  of  loss  within  the 
limits  of  the  amount  named  in  the  policy  they  shall  find 
from  the  evidence  was  sustained  by  him  by  fire  between 

the  date  of  the  said  receipt  and  the  -        -  day  of , 

18 — .    Sheppard  v.  Insurance  Co.,  21  W.  Va.  375. 


276  INSURANCE. 

w.     Same  —  As  to  limited  power  of  agents. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  a  contract  of  the  insurance  of  the  plain- 
tiff's barn,  insured  by  him  as  administrator,  was  made  by 
him  with  -  —  ,  with  reference  to  and  for  the  purpose  of 
reinstating  or  renewing  the  policy  with  the  declaration 
filed,  so  that  said  policy  was  continued  until  after  the 
loss  complained  of  occurred,  and  shall  further  believe 
I'ruin  the  evidence  that  the  said  -  -  was  the  general 
agent  of  the  -  -  Insurance  Company  (the  defendant) 
to  transact  the  general  business  for  it,  then  the  plaintiff  is 
entitled  to  recover  whatever  loss,  within  the  sum  covered 
by  the  policy,  the  jury  shall  believe  from  the  evidence  has 
accrued  to  the  plaintiff,  unless  they  further  believe  from 
the  evidence  that  the  general  powers  of  the  said  agent 
were  so  restrained  by  the  company  as  to  prohibit  the 
said  agent  from  making  the  contract  herein  first  men- 
tioned, and  that  the  plaintiff  had  notice  of  said  prohibi- 
tion. SlH'MHinl  v.  Insurance  Co.,  21  W.  Va.  376. 


x.     Books  and  papers  —  Parol  waiver  of  requirements  as 

to  where  to  be  kept. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  in  this  case,  that  the  policy  sued  on  herein 
contains  a  stipulation  that  "This  policy  is  made  and  ac- 
cepted subject  to  the  foregoing  stipulations  and  condi- 
tions, together  with  such  other  provisions,  agreements,  or 
conditions  as  may  be  indorsed  hereon  or  added  hereto, 
and  no  officer,  agent,  or  other  representative  of  this  com- 
pany shall  have  power  to  waive  any  provision  or  condition 
of  this  policy  except  such  as  by  the  terms  of  this  policy 
may  be  the  subject  of  agreement  indorsed  hereon  or  added 
hereto,  and  as  to  such  provisions  and  conditions  no  officer, 
agent,  or  representative  shall  have  such  power  or  be 
deemed  or  held  to  have  waived  such  provisions  or  condi- 


INSURANCE.  277 

tions  unless  such  waiver,  if  any,  shall  be  written  upon  or 
attached  hereto,  nor  shall  any  privilege  or  permission  af- 
fecting the  insurance  under  this  policy  exist  or  be  claimed 
by  the  insured  unless  so  written  or  attached"  then  the  in- 
surance company  can  not  be  deemed  to  have  waived  such 
Iron-safe  clause,  unless  such  waiver  was  so  indorsed  on 
or  attached  to  said  policy,  and  any  alleged  parol  waiver 
is  incompetent  and  should  not  be  considered  by  you. 
Maupin  v.  Insurance  Co.,  53  W.  Va.  566. 

y.    Intentional  burning  the  property  insured. 

The  court  instructs  the  jury  that  it  is  not  necessary  in 
order  to  prevent  the  plaintiff's  recovery  that  the  plaintiff 
should  be  proved,  beyond  a  reasonable  doubt,  to  have  in- 
tentionally and  fraudulently  caused  or  permitted  the  said 
insured  property  to  be  set  on  fire,  but  if  the  weight  or 
preponderance  of  evidence  be  to  that  effect  the  jury  should 
find  for  the  defendant.  Simmons  v.  Insurance  Co.,  8  W. 
Va.  496. 

z.    Awards — Repudiation  by  insured  of  award — Demand 

of  insurer  for  second  appraisement. 
The  court  instructs  the  jury  that  if  after  the  appraise- 
ment made  by  -  — ,  -  -  and  -  — ,  the  plaintiff  repudi- 
ated said  appraisement  and  refused  to  accept  the  amount 
thereof  claimed  to  be  chargeable  to  the  defendant,  then 
the  defendant  had  the  right,  afterwards  to  insist  upon  an 
appraisement  to  be  made  by  two  competent  and  disinter- 
ested appraisers,  the  plaintiff  to  select  one  and  the  de- 
fendant one,  and  the  two  so  selected  to  name  an  umpire, 
as  provided  in  lines  -  -  to  -  — ,  both  inclusive  of 
the  policy,  and  if  the  jury  find  that  the  plaintiff,  for  any 
cause,  refused  to  accept  the  result  of  said  appraisal,  and 
that  after  the  knowledge  of  such  refusal  the  defendant 

called  upon  the  plaintiff  by  letter  dated ,  -  — ,  to 

submit  to  such  appraisal  as  is  provided  to  be  made  by 


•J7S  INSURANCE. 

said  lines  -  -  to  -  — ,  both  inclusive,  of  the  policy, 
and  if  the  jury  further  believe  from  the  evidence  that 
the  plaintiff  has  Tailed  or  refused  to  enter  into  such  ail 
appraisal  as  demanded  by  said  letter,  then  the  plaintiff 
cannot  recover.  Levy  v.  Inxurnnce  Co.,  58  W.  Va.  — . 

1'.       PROOF  OF  LOSS. 

a.  Notice  required  by  the  policy — How  may  be  given. 

b.  Time  for  making  proof  of  loss — Waiver  of  notice. 

c.  Same. 

d.  Forthwith  notice  of  loss — How  construed. 

e.  Awards  by  arbitrators — When  evidence  of  not  re- 

quired. 

f.     Loss  covered  by  insurance — How  estimated. 

g.     Same. 

h.     Same — Burden  of  proof  —  Preponderance  of    evi- 
dence. • 

a.  Notice  of  loss  required  by  policy — How  may  be  given. 
The  court  instructs  the  jury  that  the  forthwith  notice 

required  by  the  policy  to  be  given  by  persons  sustaining 
loss  may  be  given  by  the  assured  through  an  agent,  and 
need  not  be  given  by  him  in  person.  Land  Co.  v.  Insur- 
ance Co.,  35  W.  Va.  677. 

b.  Time  for  making  proof  of  loss — Waiver  of  proof. 

The  court  instructs  the  jury  that  the  failure  to  furnish 
proofs  of  loss  under  the  policy  within  thirty  days  after 
the  fire  does  not,  under  all  circumstances,  and  at  all 
events,  constitute  a  bar  to  the  plaintiff's  recovery.  The 
defendant,  for  whose  benefit  the  provision  is  made,  may 
waive  a  compliance  with  it;  and,  even  in  the  absence  of 
a  waiver,  a  delay  for  more  than  thirty  days  in  furnishing 
the  proofs  will  not  be  conclusive  against  the  plaintiff's 
case  unless  it  appears  that  the  plaintiff  has  unreasonably 


INSURANCE.  279 

delayed  furnishing  such  proof  of  loss,  or  that  the  defend- 
ant has  in  some  way  been  prejudiced  by  the  delay.  Land 
Co.  v.  Insurance  Co.,  35  W.  Va.  677. 

c.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  did  not  render  to  the  secre- 
tary of  the  defendant  company  a  particular  statement  of 
the  loss  within  thirty  days  thereafter,  that  then  the  plain- 
tiff is  not  entitled  to  recover  in  this  action,  unless  they 
further  find  that  the  defendant  waived  this  requirement 
of  the  policy.  Land  Co.  \.  Insurance  Co.,  35  W.  Va.  679. 

d.  Forthwith  notice  of  loss — How  construed. 

The  court  instructs  the  jury  that  the  provision  in  the 
policy  which  has  been  introduced  in  evidence,  requiring 
persons  who  have  sustained  loss  by  fire  to  give  notice 
forthwith  to  the  secretary  of  the  defendant,  is  not  to  be 
construed  as  requiring  that  such  notice  should  be  abso- 
lutely immediate,  but  only  as  requiring  that  it  should  be 
given  within  a  reasonable  time,  under  the  circumstances 
of  the  case.  Land  Co.  v.  Insurance  Co.,  35  W.  Va.  677. 

e.  Award   by   arbitrators — When   evidence   of   not   re- 

quired. 

The  court  instructs  the  jury  that  under  the  provisions 
of  the  policy  which  has  been  introduced  in  evidence  it  is 
not  necessary  that  the  plaintiff,  in  making  out  his  case, 
should  furnish  evidence  of  an  award  of  arbitrators,  in  the 
absence  of  any  showing  that  a  submission  to  arbitrators 
was  requested  by  either  party,  and  in  the  absence  of  any 
showing  that  an  award  was  in  fact  made.  Land  Co.  v. 
Insurance  Co.,  35  W.  Va.  677. 

f .  Loss  covered  by  insurance — How  estimated. 

The  court  instructs  the  jury  that  if  they  believe  from 


280  INSURANCE. 

the  evidence  that  the  plaintiff  is  entitled  to  recover  in 
this  action,  they  may  find  a  verdict  for  whatever  amount 
of  loss  the  jury  believe  from  the  evidence  -  -  has  suf- 
fered by  the  fire  of  -  -  18 — ,  with  interest  on  such 
amount  from  sixty  days  after  the  proofs  of  loss  were  re- 
ceived by  defendant  company  to  the  date  of  the  verdict. 
Bentley  \.  Insurance  Co.,  40  W.  Va.  752. 

g.    Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  is  entitled  to  recover,  their 
verdict  should  be  for  the  whole  amount  of  the  loss  of 
-  by  the  fire  of  -  -  18 — ,  on  all  of  the  insured 
property  estimated  according  to  the  actual  cash  value  of 
such  loss  at  the  time  of  the  fire,  with  interest  on  such 
amount  from  sixty  days  after  the  proofs  of  loss  were  re- 
ceived by  the  defendant  company  to  the  date  of  the  ver- 
dict. Bentley  v.  Insurance  Co.,  40  W.  Va.  752. 

h.     Burden  of  proof — Preponderance  of  evidence. 

The  court  instructs  the  jury  that  the  burden  of  proof 
is  on  the  plaintiff  to  make  out  his  case  by  a  preponder- 
ance of  testimony,  and  that  if  they  find  the  evidence  evenly 
balanced,  their  verdict  must  be  for  the  defendant.  In 
other  words,  the  plaintiff's  claim  to  recover  in  this  action 
must  be  established  by  evidence  which,  in  the  opinion  of 
the  jury,  outweighs  the  evidence  produced  by  the  defend- 
ant to  resist  the  plaintiff's  claim.  If  therefore,  in  the 
opinion  of  the  jury,  the  weight  of  evidence  on  each  side  is 
exactly  equal,  the  plaintiff  must  fail  in  his  recovery. 
Slieppanl  v.  Insuarnce  Co.,  21  W.  Va.  374. 

3.      WAIVER  OF  RIGHT  TO  AVOID  PAYMENT  OF  LOSS. 

a.     Waiver  of  insurer  of  requirement  to  furnish  state- 
ment as  to  other  insurance. 


INSURANCE.  281 

b.  Knowledge  of  insurer  as  to  destruction  of  property 

by  fire. 

c.  Same — Kefusal  of  insurer  to  pay  loss. 

d.  Defective  proof  of  loss — Failure  to  return. 

e.  Refusal  of  payment  on  other  grounds  than  failure 

to  furnish  proof. 

a.  Waiver  by  insurer  of  requirement  to  jurnish  statement 

as  to  other  insurance  held  by  insured  and  of  require- 
ment to  furnish  list  of  property  destroyed. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  has  not  made  and  rendered 
to  the  defendant  a  statement  in  writing,  signed  and  sworn 
to  by  her,  stating  all  other  insurance,  whether  valid  or 
not,  covering  any  of  the  property  insured  by  the  defend- 
ant, the  cash  value  of  each  item  of  property  insured  and 
the  amount  of  loss  thereon,  then  the  plaintiff  cannot  re- 
cover, unless  the  jury  should  further  believe  from  the  evi- 
dence that  the  defendant  waived  the  furnishing  of  such 
statement  by  such  conduct  of  the  defendant  as  would  rea- 
sonably cause  the  plaintiff  to  fairly  conclude  that  such 
requirements  or  statements  had  been  dispensed  with  and 
excused.  Levy  v.  Insurance  Co.,  58  W.  Va.  — . 

b.  Knowledge  of  insurer  as  to  destruction  of  property  by 

fire — Declarations  of  insurer  as  to  refusal  to  pay 

loss. 

The  court  instructs  the  jury  that  if  they  bejieve  from 
the  evidence  that  the  defendant  upon  being  notified  of 
the  destruction  of  the  property  insured,  sent  its  adjuster 
to  settle  the  loss  some  -  -  weeks  after  the  fire,  and 
the  said  adjuster  after  the  examination  of  the  facts  and 
circumstances  attending  the  burning,  by  his  acts  and 
declarations  gave  the  plaintiff  to  understand,  and  they 
were  such  as  would  give  any  reasonable  and  sensible  per- 
son to  understand,  that  the  loss  would  not  be  settled  with- 


L»|S._.  INSURANCE. 

out  a  suit,  and  that  it  would  not  avail  him  to  furnish 
such  proof  of  loss  as  is  required  by  the  policy,  then  such 
proof  of  loss  was  waived  by  the  defendant  and  the  failure 
to  furnish  it  is  no  defence  to  this  action.  Deitz  v.  Insur- 
ance Co.,  33  W.  Va.  532. 

c.  Same — Refusal  of  insurer  to  pay  loss. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  after  being  notified  of  the 
burning  of  the  premises  insured,  sent  its  adjuster  to  set- 
tle the  loss,  and  said  adjuster  after  an  examination  of  the 
facts  and  circumstances  attending  the  burning,  notified 
the  plaintiff  that  the  defendant  was  not  liable  and  would 
not  settle  the  loss,  such  notification  was  a  waiver  of  the 
proof  of  loss  mentioned  by  the  policy  on  the  part  of  the 
defendant,  and  the  failure  of  the  plaintiff  to  provide  such 
proof  is  no  defence  to  this  action.  Deitz  v.  Insurance  Co., 
33  W.  Va.  532. 

d.  Defective  proof  of  loss — Failure  to  return. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  furnished  the  defendant 
with  a  proof  of  loss,  although  defective,  and  not  such  as 
is  required  by  the  policy  sued  on,  and  if  they  further 
find  that  the  defendant  never  returned  such  proof  to 
plaintiff  nor  complained  of  it  as  being  defective,  then  the 
defendant  waived  all  defects  in  said  proof  and  cannot  set 
up  the  same  in  defence  to  this  action.  Deitz  v.  Insurance 
Co.,  33  W.  Va.  532. 

e.  Refusal  of  insurer  to  pay  policy  on  other  grounds  than 

failure  to  furnish  proof  of  loss. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  was  notified  of  the  loss 
accruing  to  the  plaintiff  under  the  policy  filed  in  this  case, 
and  that  the  said  policy  was  renewed  or  continued  by  the 


INSURANCE.  283 

said  defendant  so  as  to  be  a  subsisting  policy  at  the  time 
the  said  loss  occurred,  the  plaintiff  is  entitled  to  recover 
whatever  loss  it  may  prove  covered  by  the  policy  and 
within  the  limits  of  the  sum  mentioned  therein,  even  al- 
though they  shall  believe  that  the  proof  of  said  loss  re- 
quired by  the  conditions  of  the  said  policy  were  not  made, 
provided  they  shall  further  believe  from  the  evidence  that 
within  the  time  mentioned  in  the  said  policy  for  the  said 
proofs,  the  defendant  declined  to  pay  the  said  loss  on 
other  grounds  than  the  failure  of  the  plaintiff  to  furnish 
the  said  proof.  Sheppard  v.  Insurance  Co.,  21  W.  Ya.  376. 

II.     LIFE  INSURANCE. 

a.  Cancellation  of  policy  by  insurer. 

b.  Statute  of  limitations — Plea  of  by  insurer. 

a.  Action  by  insurer  for  cancellation  of  policy — Recovery 

of  premiums  paid  by  policy-holder — How  amount 
insurer  entitled  to  to  be  determined. 
The  court  instructs  the  jury  that  unless  they  believe 
from  the  evidence  that  the  amount  of  money  paid  by  the 
plaintiff  on  the  policy  during  the  time  it  continued  in 
effect  exceeded  the  equitable  annual  premiums  to  which 
the  company  was  entitled  for  carrying  the  risk  on  plain- 
tiff's life  during  the  time  the  policy  was  in  force,  then 
they  will  find  for  the  defendant.    Abell  v.  Insurance  Co., 
18  W.  Va.  411. 

b.  Plea  of  statute  of  limitations  by  insurer — What  in- 

sured required  to  show  in  support  of  replication  to 

plea  of  statute  of  limitations. 

The  court  instructs  the  jury  that  to  sustain  the  replica- 
tion (marked  No.  1)  to  the  plea  of  the  statute  of  limita- 
tions, it  was  necessary  for  the  plaintiff  to  prove  that  the 


284  INSURANCE. 

defendant  resided  in  this  state  by  being  represented  by  a 
resident-agent,  so  that  process  could  be  served  on  it  at 
some  period  of  time  previous  to  the  time  that  the  cause  of 
action  set  forth  in  the  declaration  accrued,  and  that  un- 
less they  believe  from  the  evidence  that  the  defendant  was 
at  one  time  a  resident  of  this  state,  then  they  will  find 
for  the  defendant  on  the  issue  joined  upon  said  replica- 
tion. Abell  v.  Insurance  Co.,  18  W.  Va.  411. 

III.     ACCIDENT  INSURANCE. 

a.  Medical  treatment  of  insured  by  agent  of  insurer — 

Liability  for  negligence  in. 

b.  Same. 

c.  Same — When  not  at  the  instance  of  insured. 

d.  Same. — When  at  the  instance  of  insured. 

e.  Same. 

f.  Sme — When  physician  of  insurer  exceeds  his  au- 

thority— Scope  of  authority  of. 

a.    Medical  treatment  of  insured  by  agent  of  insurer — 

Liability  for  negligence  in. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  Dr.  -  — ,  as  the  agent  and  representa- 
tive called  upon  the  plaintiff  by  reason  of  the  provision  in 
the  insurance  policy  issued  by  the  defendant  to  the  plain- 
tiff, authorizing  the  defendant  to  have  its  surgeon  make 
such  examination  as  he  deemed  proper,  and  that  the  said 
Dr.  -  — ,  acting  under  said  provision,  did  make  an  exami- 
nation of  plaintiff's  foot  and  ankle  and  that  said  Dr.  - 
made  such  examination  and  negligently  and  improperly 
failed  to  replace  the  plaster  cast  removed  by  him,  and 
that  such  examination  or  failure  to  replace  such  cast,  or  a 
similar  support,  resulted  in  an  injury  to  the  plaintiff,  then 
you  should  find  for  the  plaintiff  and  assess  his  damages  at 


INSURANCE.  285 

what    you    deem    proper    under    all    the    circumstances. 
Tompkins  v.  Insurance  Co.,  53  W.  Va.  490. 

b.  Same. 

The  court  instructs  the  jury  that  if  you  believe  from 
the  evidence  that  the  examination  required  in  the  insur- 
ance policy  issued  by  defendant  to  plaintiff,  comprehended 
and  included  by  the  practice  of  reasonably  skilled  sur- 
geons, such  an  examination  as  would  leave  the  injury  to 
plaintiff's  foot  and  ankle  and  the  cast  about  such  injury, 
in  the  same  condition  in  which  it  was  found  by  the  defend- 
ant's surgeon,  Dr.  -  — ,  who  made  such  examination, 
and  the  said  surgeon  failed  to  leave  said  foot  and  ankle, 
and  such  cast  and  treatment  therefor,  in  the  condition 
in  which  he  found  them,  and  that  by  reason  of  such  fail- 
ure on  the  part  of  said  surgeon  an  injury  resulted  to  the 
plaintiff,  then  the  defendant  is  liable  therefor.  Tompkins 
v.  Insurance  Co.,  53  W.  Va.  490. 

c.  Same — When  not  at  the  instance  of  the  insured. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant,  through  its  agent,  acting 
upon  his  own  judgment,  and  not  at  the  request  or  at  the 
instance  of  the  plaintiff,  removed  the  plaster  dressing 
from  the  plaintiff's  foot  before  the  plaintiff  had  entirely 
recovered,  and  without  replacing  said  dressing,  or  substi- 
tute therefor,  directed  the  plaintiff  to  use  his  foot,  and 
that  the  use  of  the  foot  as  directed  without  any  bandages, 
support  or  dressing,  caused  the  injuries  complained  of, 
then  the  defendant  is  responsible  for  all  damages  sus- 
tained by  the  plaintiff,  directly  caused  by  the  removal  of 
the  dressing  and  the  use  of  the  foot  as  aforesaid.  Tomp- 
kins v.  Insurance  Co.,  53  W.  Va.  491. 

d.  Same — When  at  the  instance  of  insured. 

The  court  instructs  the  jury  that  if  they  believe  from 


286  INSURANCE. 

the  evidence  that  the  plaintiff  at  the  time  of  the  removal 

of  the  plaster  cast  from  his  foot,  requested  said  Dr. 

to  treat  him  for  his  injury,  and  that  the  said  Dr.  -  — , 
upon  request  and  with  the  consent  of  the  plaintiff  and 
not  at  the  instance  and  with  the  approval  of  said  Dr. 
— ,  removed  said  cast,  and  then  gave  plaintiff  direc- 
tions how  to  treat  and  use  his  said  injured  foot,  that  then 
the  plaintiff  is  not  entitled  to  recover  in  this  action,  and 
the  jury  should  find  for  the  defendant.  Tompkins  v.  In- 
surance Co.,  53  W.  Va.  494. 

e.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  injury  complained  of  was  the  re- 
sult of  treatment  by  Dr.  -  -  at  the  request  of  the 
plaintiff,  and  not  at  the  instance  and  upon  the  advice 
of  said  Dr.  -  — ,  then  the  plaintiff  cannot  recover. 
Toinpkins  v.  Insurance  Co.,  53  W.  Va.  494. 

f .  Same — When  physician  of  insurer  exceeds  his  author- 

ity— Scope  of  authority  of. 

The  court  instructs  the  jury  that  the  principal  is  not 
responsible  for  the  acts  of  its  agent  outside  of  the  scope 
of  his  agency,  and  that  all  parties  dealing  with  an  agent 
are  bound  to  know  the  scope  of  the  agency,  and  if  the 
jury  believe  from  the  evidence  that  the  authority  and 
power  of  Dr.  -  — ,  from  the  defendant  company  was 
limited,  to  an  examination  of  and  report  upon  the  in- 
juries sustained  by  the  plaintiff,  and  plaintiff  was  bound- 
to  ascertain  the  extent  of  said  Dr.  -  — 's  authority  to 
represent  the  defendant  company,  and  in  so  far,  if  at  all, 
he  permitted  any  action  by,  or  acted  upon  any  advice  of 
said  Dr.  -  — ,  not  embraced  in  said  authority,  he  can- 
not for  such  advice  or  action,  or  for  injuries  resulting 
therefrom,  recover  damages  from  the  defendant.  Tomp- 
kins  v.  Insurance  Co.,  53  W.  Va.  494. 


INTOXICATING  LIQUORS.  287 

CHAPTER  41. 

INTOXICATING  LIQUORS. 

a.  Receiving  orders  for  sales  of  intoxicating  liquors. 

b.  Unlawful  sales  to  minors — Who  may  maintain  suit 

because  of. 

c.  Unlawful  sales  to  husbands — Exemplary  damages. 

a.  Receiving  orders  for  sales  of  intoxicating  liquors. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence,  beyond  a  reasonable  doubt,  that  the  defend- 
ant received  from  —  -  and  order  for  -  -  gallons  of 
intoxicating  liquors  in  the  said  county  of  -  — ,  within 
one  year  next  preceding  the  finding  of  the  indictment, 
then  you  must  find  the  defendant  guilty.  State  v.  Swift, 
35  W.  Va.  544. 

b.  Unlawful  sales  to  minors — Who  may  maintain  suit 

because  of. 

The  court  instructs  the  jury  that  if  the  mother  of  a 
minor  son  has  been  injured  in  her  means  of  support  by 
the  intoxication  of  such  son,  caused  in  whole  or  in  part 
by  intoxicating  liquors  unlawfully  sold  to  him  by  a  liquor 
dealer,  the  mother  has  a  right  of  action  against  the  per- 
son making  such  sale,  although  at  the  time  of  such  injury 
she  may  be  living  with  her  husband,  on  whom  she  depends 
in  part  for  support.  McMaster  v.  Dyer,  44  W.  Va.  645. 

c.  Unlawful  sales  to  husband — Exemplary  damages. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  plaintiff  was  injured  in  her  means 
of  support  in  consequence  of  the  intoxication,  habitual 
or  otherwise,  of  her  husband,  caused  in  whole  or  in  part 


288  LANDLORD  AND  TENANT. 

by  the  unlawful  selling  or  giving  intoxicating  liquors  to 
him  by  -  — ,  they  shall  find  for  the  plaintiff  for  all 
damages  sustained  and  for  exemplary  damages.  Mayer 
v.  Frobc,  40  W.  Va.  24G-258,  overruling  Pegram  v.  Stortz, 
31  W.  Va.  220. 


CHAPTER  42. 
LANDLORD  AND  TENANT. 

a.  As  to  releasing  tenant  from  payment  of  rent — Con- 

cerning independent  covenant  requiring  landlord 
to  make  repairs. 

b.  Injuries  to  tenant's  property  caused  by  defective 

plumbing. 

c.  Same — How  damages  estimated. 

a.  When  tenant  not  released  from  payment  of  rent  by 

failure  of  landlord  to  make  repairs — Independent 
covenant  requiring  landlord  to  make  repairs. 
The  court  instructs  the  jury  that  the  defendants  are 
not  released  from  the  payment  of  any  rent  by  the  plain- 
tiff's failure  to  repair  the  roof.  His  agreement  to  do  so 
was  an  independent  covenant  and  the  defendants  could 
only  recover  on  account  of  the  breach  thereof  such  dam- 
ages by  reason  of  the  breach  as  they  might  show  in  evi- 
dence to  the  jury.  No  such  damages  have  been  pleaded 
or  proven  in  this  proceeding,  and  therefore  none  can  be 
allowed.  Arbenz  v.  Exley,  Watkins  &  Co.,  52  W.  Va.  484. 

b.  Injuries   to   tenant's   property  caused  by   defective 

plumbing. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  was  a  tenant  of  the  defend- 


LANDLORD  AND  TENANT— LARCENY.  289 

ant,  and  that  in  consequence  of  the  defective  plumbing 
or  want  of  repairs,  or  negligence  of  the  defendant,  the 
plaintiff  suffered  an  injury  to  his  property  with- 
out any  fault  of  his  own,  then  the  plaintiff  is  entitled  to 
recover  damages  for  the  injury  sustained  in  consequence 
thereof.  Michaelson  v.  Cautley,  45  W.  Va.  534. 

c.     Same — How  damages  estimated. 

The  court  instructs  the  jury  that  should  they  find  that 
the  defendant  is  liable  to  the  plaintiff,  that  the  measure 
of  damages  for  the  injury  done  is  that  amount  that 
will  compensate  and  make  the  plaintiff  whole — the  differ- 
ence in  value  of  the  property  injured  between  that  which 
was  immediately  before  the  injury  done,  and  that  after- 
wards. Michaelson  v.  Cautley,  45  W.  Va.  534. 


CHAPTER  43. 
LARCENY. 

a.  Essentiality  of  identity  of  goods  stolen. 

b.  Unwilling  relinquishment  of  possession   of  goods 

not  essential — Obtaining  goods  by  false  represen- 
tations. 

c.  Ownership  of  goods — What  deemed  sufficient  to  es- 

tablish. 

d.  Person  charged  with  burglary  may  be  convicted  of 

larceny. 

a.    Essentiality  of  identity  of  goods  stolen. 

The  court  instructs  the  jury  that  one  of  the  essential 
questions  involved  in  this  case  is  the  identity  of  the  - 
alleged  in  the  indictment  to  have  been  stolen;  and  before 
the  jury   can   convict   the  prisoner  the   identity  of   the 


;_'<)<  I  LARCENY. 

-  must  be  proved  beyond  all  reasonable  doubt.    !<tntc 
v.  Bclknap,  39  W.  Va.  430. 

b.  Unwilling  relinquishment  of  possession  of  goods  not 

essential — Obtaining  goods  by  felonious  false  repre- 
sentations— Felonious  conversion  of  goods  without 
consent  of  owner. 

The  court  instructs  the  jury  that  there  may  be  lan-cnv 
even  though  the  possession  of  the  property  stolen  was 
willingly  relinquished  by  its  owner  and  if  the  jury  believe 
from  the  evidence,  beyond  a  reasonable  doubt,  that  the  de- 
fendant obtained  possession  of  -  — 's  money  by  means 
of  false  representations  with  felonious  intent  at  the  time 
of  stealing  it,  and  after  obtaining  its  possession  he  fe- 
loniously converted  the  same  to  his  own  use  without  the 
consent  of  -  — ,  they  should  find  the  defendant  guilty. 
State  v.  Edwards,  51  W.  Va.  231. 

c.  What   deemed   sufficient   to    establish   ownership    of 

goods. 

The  court  instructs  the  jury  that  the  ownership  or  right 
of  property  in  the  -  — ,  in  the  indictment  named,  is 
sufficiently  laid  in  -  — ,  provided  the  jury  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  -  — ,  at 
the  time  of  the  commission  of  the  alleged  offense,  had  the 
actual  or  constructive  possession  or  general  or  special 
property  in  the  whole  or  any  part  of  the  -  — ,  and  that 
said  -  -  was  a  person  competent  by  law  to  hold  the 
property  in  her  own  name.  State  v.  Heaton,  23  W.  Va. 
776. 

d.  When  person  charged  with  burglary  may  be  con- 

victed of  larceny. 

The  court  instructs  the  jury  that  although  they  should 
believe  from  the  evidence  that  no  dwelling  house  was 
broken  or  entered,  as  alleged  in  the  indictment,  yet  if 


LIBEL  AND  SLANDER.  291 

they  believe  from  the  evidence  that  the  defendant  stole 
and  carried  away  any  of  the  goods  of  -  — ,  as  alleged 
in  the  indictment,  then  they  should  find  him  guilty  of  the 
larceny  of  said  goods.  State  v.  Williams,  40  W.  Va.  269. 


CHAPTER  44 
LIBEL  AND  SLANDER. 

a.  Matter  published  in  course  of  judicial  proceedings. 

b.  Same— Malice  towards  plaintiff. 

a.  Matter  published  in  course  of  judicial  proceedings. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  libelous  matter  complained  of  by  the 
plaintiff,  was  composed  and  published  only  in  the  due 
course  of  judicial  procedure  by  the  defendants,  and  that 
said  defendants  had  reasonable  cause  for  believing,  and 
did  actually  believe,  that  the  said  matter  was  pertinent  to 
the  case  they  sought  to  make,  and  the  relief  they  prayed 
for,  then  the  jury  will  find  for  the  defendants.  Johnson 
v.  Brown,  13  W.  Va.  149. 

b.  Same — Malice  towards  plaintiff. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  libelous  matter,  complained  of  by 
the  plaintiff,  was  regularly  composed  and  published  by 
the  defendants  in  the  due  course  of  judicial  procedure, 
they  will  find  for  the  defendants,  unless  they  are  satisfied 
from  the  evidence,  that  such  composing  and  publishing 
was  done  by  the  defendants  with  actual  malice  towards 
the  plaintiff.  Johnson  v.  Brown,  13  W.  Va.  150. 


292  LIMITATION  OF  ACTIONS. 

CHAPTER  45. 
LIMITATION  OF  ACTIONS. 

a.  Action  in  ejectment — Breach  of  covenant — Plea  of 

statute  of  limitations. 

b.  Action  to  cancel  life  insurance  policy — Replication 

to  plea  of  statute  of  limitations. 

a.  Action  in  ejectment — Breach  of  covenant — Plea   of 

statute  of  limitations. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  at  the  time  of  conveyance  from  the  de- 
fendant to  -  — ,  shown  in  evidence,  and  bearing  date 
on  the  -  -  day  of  -  -  18 — ,  that  the  part  of  the 
land  thereby  attempted  to  be  conveyed,  embraced  by  the 
alleged  interlock  or  lap  with  the  -  -  survey  of  - 
acres,  now  claimed  by  the  trustees  of  -  — ,  was  in 
the  actual  possession  of  those  under  whom  said  - 
claims  by  a  title  paramount  to  the  title  conveyed  by 
said  -  -  to  -  — ,  then  there  was  a  breach  in  said 
covenant  in  said  conveyance  eo  instunti,  and  if  more  than 
ten  years  elapsed  from  that  time  before  the  bringing  of 
this  suit,  the  action  is  barred,  and  the  jury  should  find 
for  the  defendant.  Ilsley  v.  Wilson,  42  W.  Va.  763. 

b.  Action  to  cancel  life  insurance  policy — Replication  to 

plea  of  statute  of  limitations. 

The  court  instructs  the  jury  that  to  sustain  the  repli- 
cation (marked  Xo.  1),  to  the  plea  of  the  statute  of  limita- 
tions, it  was  necessary  for  the  plaintiff  to  prove  that  the 
defendant  resided  in  this  state  by  being  represented  by 
a  resident  agent,  so  that  process  could  be  served  on  it 
at  some  period  of  time  previous  to  the  time  that  the 
cause  of  action  set  forth  in  the  declaration  accrued,  and 
unless  they  believe  from  the  evidence  that  the  defendant 


LOGS  AND  LOGGING.  293 

was  at  one  time  a  resident  of  this  state,  then  they  will 
find  for  the  defendant  on  the  issue  joined  upon  said  repli- 
cation. Abell  v.  Insurance  Co.,  18  W.  Va.  411. 


CHAPTER  46. 
LOGS  AND  LOGGING. 

a.  What  passes  title  to  logs. 

b.  Deficiency  in  quantity  delivered — Effect  of. 

c.  Same — Place  of  delivery. 

d.  Time  of  delivery — Quantity  required  to  be  delivered. 

e.  Rules  for  measurement  of  timber. 

f.  Same — Measurement   of  logs  without  reducing  to 

a  square. 

g.  Same — Rules  for  measurement  in  absence  of  special 

contract, 

a.  What  passes  title  to  logs — What  vests  title  to  logs  in 

purchaser. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  a  part  of  the  -  -  rafts  of  timber 
levied  upon  by  virtue  of  executions  in  favor  of  the 
bank  of  -  —  against  —  -  was  hauled  to  the  banks  of 
the  drifting  or  splashing  water,  was  there  measured  and 
branded  by &  Co.,  under  the  contracts  read  in  evi- 
dence dated  respectively,  -  — ,  ,  and  , 

— ,  and  was  drifted  to  and  rafted  at  the  mouth  of 
—  creek,  then  such  timber  passed  to  and  became  the 
property  of  -       —  &  Co.,  and  the  jury  should  so  find  by 
their  verdict.    Bank  v.  Napier,  41  W.  Ya.  491. 

b.  Deficiency  in  quantity  delivered — Effect  of. 

The  court  instructs  the  jury  that  under  the  written 
contract  in  this  case  the  defendant  was  required  to  de- 


294  LOGS  AND  LOGGING. 

liver  for  the  plaintiff  not  less  than  -        -  feet  of  - 
timber,  of  the  quality  and  dimensions  mentioned  in  the 
contract,  by  the  -     -  day  of  -   — ,  18 — ,  on  the  banks  of 

-  river,  secure  from  high  water;  and  if  the  jury  be- 
lieve from  the  evidence  that  there  was  an  essential  defici- 
ency in  the  quantity  to  be  delivered,  then  the  plaintiff  was 
not  bound  to  accept  or  pay  for  the  said  amount  of  timber 
there  delivered,  and   the  jury  cannot  find  anything  in 
favor  of  the  defendant  against  the  plaintiff  on  account  of 
said  timber,  nor  can  the  jury  offset  the  same  against  the 
demand  of  the  plaintiff.    Lumber  Co.  v.  Ward,  36  W.  Va. 
576. 

c.  Same — Place  of  delivery. 

The  court  instructs  the  jury  that  under    the    written 
agreement  in  this  case  the  .defendant  was  required  to  de- 
liver for  the  plaintiff  not  less  than  -        -  feet  of  — 
timber  of  the  quantity  and  dimensions  mentioned  in  the 
agreement,  on   the  banks  of  -  -  river,   secure  from 

high  water;  and  if  the  jury  believe  from  the  evidence 
that  such  timber  as  was  delivered  was  not  delivered 
secure  from  high  water,  then  the  jury  can  not  find  any- 
thing in  favor  of  the  defendant  against  the  plaintiff  on 
account  of  such  timber,  although  the  jury  may  believe  it 
was  afterwards  carried  away  by  high  water.  Lumber  Co. 
v.  Ward,  36  W.  Va.  576. 

d.  Time  of  delivery — Quantity  required  to  be  delivered. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  defendant  was  to  furnish  at  least 

-  feet  of  -         -  logs,  to  average  -     -  inches  at  the 
top  of  the  log  and  not  to  be  less  than  -    -  inches,  on  the 

-  day  of  -   — ,  18 — ,  and  that  said  defendant  failed  to 

have  that  quantity  of  -        -  timber  on  the  banks  of , 

according  to  the  contract,  then  the  plaintiff  was  not 
bound  to  accept  and  pay  for  the  whole  amount,  or  any 


LOGS  AND  LOGGING.  295 

part  thereof;  and  the  jury  can  not  find  anything  for  the 
defendant  for  any  logs  that  may  have  been  put  on  the 
banks  of  -  — ,  less  than  the  quantity  required  by  the 
contract.  Lumber  Co.  v.  Ward,  36  W.  Va.  577. 

e.  Rules  for  the  measurement  of  timber — Agreement  of 

parties  as  rule  of  measurement. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  and  the  defendant  agreed 
upon  a  rule  of  measurement  by  which  the  contents  of  the 
timber  in  the  contract  was  to  be  ascertained,  they  should 
adopt  that  rule  in  ascertaining  the  amount  of  cubic  feet 
sold  to  the  defendant.  Johnson  v.  Burns,  39  W.  Va.  667. 

f.  Same — Measurement  of  logs  without  reducing  to  a 

square. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  and  the  defendant,  at  the 
time  of  the  sale  of  the  timber  specified  in  the  contract 
offered  in  evidence  to  the  jury,  agreed  that  in  the  measure- 
ment of  said  timber  the  solid  contents  thereof  should  be 
estimated  without  reducing  the  logs  to  a  square,  then  the 
rule  given  by  Scribner,  commencing  on  page  64  of  this 
book,  would  be  applicable  in  estimating  the  quantity  of 
the  timber  sold.  Johnson  v.  Burns,  39  W.  Va.  667. 

g.  Rules  for  measurement  in  absence  of  special  contract. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  there  was  no  special  contract  between 
the  parties  as  to  the  mode  of  measuring  and  ascertaining 
the  cubic  feet  in  the  timber  sold  by  the  plaintiff  to  the 
defendant,  then,  in  the  ascertainment  of  the  contents  of 
the  logs  and  timber  involved  in  this  suit,  it  must  be  by 
Scribner's  rule,  "cubic  measurement,"  "round  timber,  re- 
duced to  square  timber."  Johnson  v.  Burns,  39  W.  Va. 
664. 


006  MALICIOUS    PROSECUTIONS. 

CHAPTER  47. 
MALICIOUS  PROSECUTIONS. 

a.  Malice  and  want  of  probable  cause  shown. 

b.  Same — What  to  be  considered  in  determining. 

c.  Malice — Definition  of — Necessity  for  existence  of. 

d.  Probable  cause — Definition  of. 

e.  Probable  cause — Consideration  of  what  necessary 

to  constitute, 
f.     Same — Want  of — Expense  incurred   in   defense  of 

prosecution, 
g.     Same — Acquittal  of  charge  prima  facie  evidence  of 

want  of. 
h.     Same — Acquittal  of  charge  not  conclusive  evidence 

of  want  of. 

i.     Same — Existence  of. 
j.     Same — When  party  acting   under   advice   of    civil 

officer. 

k.     Same — What  necessary  to  establish  conspiracy. 
1.     Merger  of  right  of  action, 
m.     Waiver   of   preliminary   examination   prima   facie 

evidence  of  guilt. 

a.    Malice  and  want  of  probable  cause  must  be  concur- 
rently shown. 

The  court  instructs  the  jury  that  in  order  to  entitle  the. 
plaintiff  to  recover  in  this  action  he  must  prove  affirma- 
tively to  the  satisfaction  of  the  jury  by  a  preponderance 
of  evidence,  the  defendants  sued  out  the  warrant  against 
the  plaintiff  without  any  reasonable  or  probable  cause 
therefor,  and  also  that  in  so  doing  they  were  actuated  by 
malice  toward  the  plaintiff,  and  that  unless  the  want  of 
probable  reasonable  cause  and  malice  concurred,  at  the 


MALICIOUS  PROSECUTIONS.  .    297 

time  said  warrant  was  sued  out,  the  plaintiff  cannot  re- 
cover.   Vinal  v.  Core,  18  W.  Va.  62. 

b.  Same — What  to  be  considered  in  determining. 

The  court  instructs  the  jury  that  the  jury  in  consider- 
ing the  question  of  malice,  as  well  as  probable  cause, 
should  consider  the  information  given  on  oath  by  the  de- 
fendant to  the  justice,  who  issued  the  warrant,  at  the 
time  of  issuing  the  said  warrant  for  the  plaintiff's  arrest, 
derived  by  the  defendant  from  others ;  that  if  the  jury  are 
satisfied  that  the  defendant  believed  such  information  as 
he  received  from  another  person  to  be  true,  that  there  was 
probable  cause  for  said  defendant  causing  such  warrant  to 
issue.  Sisk  v.  Hurst,  1  W.  Ya.  55. 

c.  Malice — Definition  of — Necessity  for  existence  of. 
The  court  instructs  the  jury  that  whether  the  defend- 
ants have  been  actuated  by  malice  is  a  question  of  fact  to 
be  determined  by  the  jury  only ;  and  in  determining  it  they 
should  consider  all  the  facts  and  circumstances  in  the 
case,    and   unless   they   find   that   the   defendants   were 
actuated  by  malice,  they  cannot  find  a  verdict  against 
them.     But  by  malice  is  not  meant  merely  malignity  or 
ill  will,  but  it  includes  every  sinister  or  improper  motive, 
that  is,  every  motive  other  than  a  desire  to  bring  punish- 
ment to  a  party  believed  to  be  guilty  of  a  crime.    If  for 
instance  in  this  case  the  defendants  were  in  whole,  or  in 
part,  actuated  by  a  desire  to  obtain  possession  of  the  oil, 
alleged  to  have  been  stolen,  they  must  in  law  be  held  to 
have  been  actuated  by  malice.    Vinal  v.  Core,  18  W.  Va. 
74. 

d.  Probable  cause — Definition  of.  f 
The  court  instructs  the  jury  that  probable  cause  is  a 

state  of  facts  actually  existing  known  to  the  prosecutors 
personally  or  by  information  derived  from  others,  which 


298  .  MALICIOUS    PROSECUTIONS. 

would  justify  the  prosecution,  that  is,  which  in  the  judg- 
ment of  the  court  would  lead  a  reasonable  man  of  ordin- 
ary caution,  acting  conscientiously  on  these  facts,  to  be- 
lieve the  party  guilty.  Yinal  v.  Core,  18  W.  Va.  68. 

e.     Probable  cause — Consideration  of  what  necessary  to 

constitute. 

The  court  instructs  the  jury  that  to  constitute  the 
crime  of  larceny  as  charged  against  the  plaintiff,  -  — , 
it  must  have  been  shown  that  plaintiff,  with  a  felonious 
intent,  did  take,  steal  and  carry  away  the  -  -  in  ques- 
tion from  the  possession  of  -  -  or  his  agents  with  in- 
tent to  convert  the  said  -  -  to  his,  plaintiff's,  own 
use;  and  if  the  said  -  -  was  not,  in  fact,  in  the  pos- 
session or  under  the  control  of  said  -  -  or  of  his 

agents,  then  the  removing  of  said  by    the    said 

• 
— ,  (plaintiff)  and  its  conversion  to  his  own  use  did 

not  constitute  larceny;  and  if  the  defendants  knew  that 
said  oil  was  not  in  fact  in  the  possession  or  under  the 
control  of  the  said  -  -  (one  of  the  defendants)  and 
his  agents,  when  it  was  removed  by  -  — ,  (plaintiff) 
then  such  removal  did  not  constitute  probable  cause  for 
the  prosecution  of  the  plaintiff,  and  the  jury  may  pre- 
sume that  the  defendants  knew  that  said  oil  was  not  in 
fact  in  the  possession  or  under  the  control  of  said  —  — , 
(one  of  the  defendants)  or  his  agents,  when  so  removed, 
from  the  mere  existence  of  this  fact,  if  it  be  found  by  the 
jury  to  have  existed,  unless  they  prove  to  the  satisfaction 
of  the  jury,  that  they,  (defendants)  did  not  know  this 
fact.  Vinal  v.  Core,  18  W.  Va.  72. 

£M    Same — Want    of — Expense    incurred    in    defense    of 

prosecution. 

The  court  instructs  the  jury  that  although  no  actual 
damages  may  have  been  proven  by  the  plaintiff  in  this 
case  as  to  actual  attorney  fees  and  expenses  about  his 


MALICIOUS  PROSECUTIONS.  299 

defense  in  the  prosecution  commenced  or  pursued  against 
him  by  the  defendant  in  this  case,  and  although  he  may 
have  proven  no  actual  damages  for  loss  of  time  because  of 
the  prosecution  against  him,  but  of  all  this  the  jury  are 
to  judge  from  the  evidence  in  the  case,  yet  the  jury  may 
give  such  damages  as  they  think  proper  for  injury  to  the 
plaintiff's  feelings,  person  and  character  by  his  detention 
in  custody  and  prosecution,  if  they  believe  from  the  evi- 
dence that  there  was  a  prosecution  commenced  or  pur- 
sued against  him  by  the  defendant  and  that  said  prose- 
cution was  instigated  by  the  defendant  without  probable 
cause  therefor,  and  with  malice  express  or  implied  from 
the  want  of  probable  cause,  and  that  the  prosecution  was 
conducted  to  its  termination  to  the  final  discharge  of  the 
plaintiff,  without  proof  as  to  the  amount  of  such  dam- 
ages, and  the  jury  may  give  such  punitive  or  examplary 
damages  as  they  may  think  proper,  for  the  conduct  of 
the  defendant,  if  they  believe  from  the  evidence  in  this 
case  that  the  said  prosecution  against  the  plaintiff  was 
commenced  or  pursued  for  the  private  ends  of  defendant, 
or  if  they  believe  from  the  evidence  that  said  prosecu- 
tion was  commenced  or  pursued  with  reckless  disregard 
of  the  rights  of  the  plaintiff  and  may  assess  such  damages 
without  proof  as  to  the  amount  thereof,  the  amount  not 
to  exceed  $ .  Waldron  v.  Sperry,  53  W.  Va.  122. 

g.    Same — Acquittal  of  charge  prima  facie  evidence  of 

want  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  was  arrested  on  the  war- 
rant, on  the  charge  of  grand  larceny,  was  examined  on 
said  charge,  and  after  said  examination  before  the  justice, 
as  alleged  in  the  declaration,  was  discharged  from  prose- 
cution thereon,  as  alleged,  then  such  discharge  is  prima 
facie  evidence  that  there  was  want  of  probable  cause  for 
such  criminal  prosecution  sufficient  to  throw  the  burden 


300  MALICIOUS  PROSECUTIONS. 

of  proof  on  the  defendants  of  rebutting  the  inference  that 
there  was  such  want  of  probable  cause  for  charging  the 
plaintiff  with  the  crime  set  out  in  the  warrant  in  the 
declaration  mentioned;  and  if  the  jury  believe  from  the 
evidence  that  there  was  want  of  probable  cause  for  charg- 
ing the  plaintiff  with  said  crime,  then  the  jury  have  the 
right  to  infer  malice  in  the  defendants.  Vinal  v.  Core, 
18  W.  Va.  69. 

h.    Same — Acquittal  of  charge  not  conclusive  evidence  of 

want  of. 

The  court  instructs  the  jury  that  the  acquittal  by  the 
justice  of  the  plaintiff  of  the  charge  in  the  warrant,  is 
not  in  this  action  conclusive  evidence  of  the  want  of 
probable  cause;  and  if  the  jury  believe  from  the  evidence 
adduced  before  them,  that  the  facts  and  circumstances  so 
existed  at  the  time  of  suing  out  the  warrant  created  a 
well-grounded  belief  of  the  plaintiff's  guilt,  as  charged  in 
the  warrant,  then  the  plaintiff  is  not  entitled  to  recover. 
Vinal  v.  Core,  18  W.  Va.  66. 

i.    Same — Existence  of. 

The  court  instructs  the  jury  that  if  they  believe 
from  the  evidence,  the  defendant  had  infor- 

mation which,  as  a  prudent  man,  would  lead  him 
to  suspect  or  believe  that  was  engaged, 

with  others,  in  the  assault  charged,  in  the  said  war- 
rant, and  that  said  -  -  was  in  company  with  the  other 
parties,  who  in  fact  did  make  the  assault  charged  in  the 
said  warrant,  given  in  evidence  in  this  cause,  that  these 
facts  and  circumstances  constitute  probable  cause  for 
the  issuing  the  said  warrant,  although  it  should  after- 
wards appear  that  the  said  —  -  in  fact  used  no  violence 
against  —  -  at  the  time,  and  the  plaintiff  in  this  suit 
cannot  recover.  Sisk  v.  Hurst,  1  W.  Va.  55. 


MALICIOUS  PROSECUTIONS.  301 

j.     Same — When  party  acting  under  advice  of  civil  offi- 
cer. 

The  court  instructs  that  if  the  jury  believe  from 
the  evidence  in  this  cause  that  the  said  defend- 
ant, under  oath,  detailed  to  the  justice  the  whole 
of  the  information  he  had  derived  from  another 
person  as  to  the  guilt  of  the  plaintiff,  — ,  tof 

the  charge  mentioned  in  said  warrant,  and  that  the  de- 
fendant believed  such  information  to  be  true,  and  such 
justice,  as  a  conservator  of  the  peace,  in  his  opinion  and 
in  discharge  of  his  duty  as  such  justice,  advised  the  issu- 
ing of  the  said  warrant,  the  defendant  is  not  liable  in  this 
action.  Sisk  v.  Hurst,  1  W.  Va.  55. 

k.    Same — Conspiracy — What  necessary  to  establish. 

The  court  instructs  the  jury  that  in  order  to  entitle 
the  plaintiff  to  recover  against  the  defendant,  -  — ,  the 
jury  must  believe  from  the  evidence  that  the  warrant  was 
sued  out  by  him,  or  counseled  and  advised  by  him,  or 
that  he  voluntarily  participated  in  the  prosecution,  and 
that  it  was  carried  on  with  his  countenance  and  approval, 
or  that  he  unlawfully  entered  into  a  conspiracy  with  his 
co-defendant,  —  — ,  to  have  said  warrant  issued  with- 
out reasonable  or  probable  cause  therefor  and  with  malice 
toward  the  plaintiff.  Vinal  v.  Core,  18  W.  Va.  62. 

1.    Merger  of  right  of  action. 

The  court  instructs  the  jury  that  all  the  rights  of  action 
which  the  plaintiff  ever  possessed,  by  reason  of  the  breach 
of  the  defendants  of  the  contract  described  in  the  declara- 
tion of  the  plaintiff  in  the  suit  in  evidence  brought  by  him 
and  tried  in  the  circuit  court  of  the  United  States,  in  the 
district  of  West  Virginia,  the  record  of  which  is  in  evi- 
dence in  this  case,  have  been  merged  in  the  judgment 
rendered  in  the  said  circuit  court  of  the  United  States, 
and  that  no  further  action  or  recovery  can  be  had  by  rea- 


302  MARRIED  WOMEN. 

son  of  the  failure  of  the  defendants  in  this  suit,  or  either 
of  them,  to  perform  the  said  contract.  Porter  v.  Mack, 
:,<»  W.  Va.  596. 

m.    Waiver  of  preliminary  examination  prima  facie  evi- 
dence of  guilt. 

The  court  instructs  the  jury  that  if  they  be- 
lieve from  the  evidence  that  the  plaintiff  was  ar- 
rested upon  a  warrant  issued  upon  a  complaint 
made  by  the  defendant  and  taken  before  a  justice  for 
examination,  and  that  the  plaintiff  waived  such  examina- 
tion and  entered  into  a  recognizance  to  answer  an  indict- 
ment upon  the  matter  charged  in  said  complaint,  then 
such  waiver  is  prim  a  fade  evidence  that  there  was  at  least 
probable  cause  sufficient  to  justify  the  defendant  in  mak- 
ing the  said  complaint.  Brady  v.  Stiltner,  40  W.  Va.  296 


CHAPTER  48. 
MARRIED  WOMEN. 

a.  How  married  women  may  carry  on  business — Ex- 

ceptions. 

b.  When  property  of  married  woman  liable  for  debts 

of  husband. 

c.  Defective  acknowledgments  of  married  women. 

a.  How  a  married  woman  may  carry  on  business — Must 
have  separate  estate  or  live  separate  and  apart  from 
husband. 

The  court  instructs  the  jury  that,  unless  living  separate 
and  apart  from  her  husband,  a  married  woman  cannot 
carry  on  any  business  unless  she  has  separate  estate,  and 


MARRIED  WOMEN.  303 

if  the  jury  find  that  Mrs.  -  -  had  no  separate  estate  in 
18 — ,  when  the  two  farms  that  she  claims  to  have  been 
renting  were  rented,  and  that  the  property  now  on  said 
farms  and  levied  upon  has  been  acquired  by  her  [earnings 
in  carrying  on  the  business]  of  farming,  either  with  or 
without  the  assistance  of  her  husband,  and  that  she  has 
not  since  that  time  been  living  separate  and  apart  from 
her  husband,  then  the  jury  will  find  the  property  thus 
acquired  is  the  property  of  her  husband  [unless  they  be- 
lieve she  became  possessed  of  a  separate  estate  since  the 
year  18 — ,  by  gift  or  otherwise,  from  a  person  other  than 
her  husband.]  Trapnell  v.  ConUyn,  37  W.  Va.  256. 

b.  When  property  of  married  woman  liable  for  her  hus- 

band's debts. 

The  court  instructs  the  jury  that  the  .property  acquired 
by  the  earnings  of  a  married  woman  [having  no  separate 
estate]  or  the  combined  earnings  of  her  and  her  husband 
during  coverture,  belong  to  the  husband  and  are  liable 
for  his  debts,  and  if  they  find  from  the  evidence  that  the 
property  levied  on  under  the  executions  in  this  case,  or 
any  part  thereof,  was  produced  or  acquired  by  the  labor, 
skill  or  occupation  of  Mrs.  -  — ;  either  with  or  without 
the  assistance  of  her  husband  during  coverture,  if  they 
find  she  is  married,  then  any  such  property  thus  acquired 
is  the  property  of  her  husband  and  is  liable  for  his  debts 
[unless  they  believe  that  during  coverture  she  acquired  a 
separate  estate  by  gift,  grant  or  devise  from  some  person 
other  than  her  husband  or  the  proceeds  thereof.]  Trap- 
iK'll  v.  Conklyn,  37  W.  Va.  256. 

c.  Defective  acknowledgements  of  married  women. 

The  court  instructs  the  jury  that  the  deed  executed  by 

-  to  —      — ,  bearing  date  —      — ,  offered  in  evidence, 

and  purporting  to  be  also  signed  by  -       — ,  and  purport 

ing  to  be  also  acknowledged  by  ,  wife  of  the  said 


3()4  MASTER  AND  SERVANT. 

— ,  is  a  good  deed  for  the  purpose  of  conveying  the 
interest  of  -  -  in  the  land  therein  mentioned.  And 
the  court  also  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  said  -  — ,  at  the  time  of  the  exe- 
cution and  acknowledgement  of  said  deed,  was  the  wife 
of  the  said  -  — ,  then  the  said  deed  is  not  valid,  so  far 
as  it  purports  to  be  her  deed,  and  does  not  convey  any 
interest  she  may  have  had  in  said  land,  and  cannot 
operate  against  her  or  her  grantees  by  way  of  estoppel. 
Laidlcy  v.  Land  Co.,  30  W.  Va.  509. 

[NOTE. — This   was   under  the  statute   requiring  sepa- 
rate acknowledgment  of  married  women.] 


CHAPTER  49. 
MASTER  AND  SERVANT. 

1.  NATURE  AND  EXTENT  OF   MASTER'S  LIABILITY. 

2.  MACHINERY,     APPLIANCES,     MATERIAL    AND     PLACE    TO 

WORK. 

3.  ROADBEDS  AND  TRACKS. 

4.  WARNING,    INSTRUCTING    AND   GIVING     ORDERS     TO     SER- 

VANTS. 

5.  FELLOW  SERVANTS. 

6.  RISKS  ASSUMED  BY  SERVANTS. 

7.  CONTRIBUTORY  NEGLIGENCE. 

1.      NATURE  AND  EXTENT  OF  MASTER'S  LIABILITY. 

a.  Care  required  in  general. 

b.  Same — Character  of  employment. 


MASTER  AND  SERVANT.  305 

c.  Measure  of  care — Definition  of. 

d.  Ordinary  care — Definition  of. 

e.  Wrongful  dismissal  of  servant — Duty  of  servant, 
f.  When  master  not  guarantor  against  accidents. 

a.  Care  required  in  general. 

The  court  instructs  the  jury  that  it  was  the  duty  of  the 
defendant  to  use  all  reasonable  care  and  diligence  for 
the  safety  of  its  employes,  and  that  the  plaintiff,  in  en- 
tering into  the  service  of  the  defendant,  had  a  right  to 
presume  that  the  defendant  had  discharged  this  duty, 
and  the  plaintiff  on  entering  the  employment,  is 
presumed  to  have  assumed  only  those  ordinary  risks 
connected  with  his  duties  which  would  exist  after 
the  discharge  by  the  defendant  of  the  duty  above 
set  out;  and  if  the  jury  believe  from  the  evidence 
that  the  defendant  failed  to  discharge  such  duty, 
and  that  the  injury  complained  of  resulted  to  the  plain- 
tiff from  such  failure,  without  fault  or  negligence  on  the 
part  of  the  plaintiff  at  the  time  of  the  injury,  which  ordi- 
nary care  and  prudence  on  his  part  could  have  avoided, 
then  the  defendant  is  liable  for  such  injury.  Skidmore  v. 
Railroad  Co.,  41  W.  Va.  296. 

b.  Same — Character  of  employment. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  railroad  of  the  defendant  upon 
which  the  plaintiff  was  employed  when  he  was  injured 
was  a  new  road;  that  it  was  built  alongside  of  a  precip- 
itous mountain,  with  a  side-cut  most  of  the  way  on  one 
side,  and  was  open  on  the  other  side  next  to  -  -  run ; 
that  by  reason  of  it  being  a  new  road,  and  by  the  char- 
acter of  the  country  through  which  it  passed,  the  service 
upon  said  road  was  more  dangerous  than  it  would  other- 
wise have  been,  and  if  they  believe  that  the  plaintiff  knew 
that  it  was  a  new  road  and  the  character  of  the  country 


306  MASTER  AND  SERVANT. 

through  which  it  passed ;  and  if  they  further  believe  from 
the  evidence  that  the  defendant  used  such  care  in  the 
construction  of  its  road  and  keeping  it  in  repair  and  in  a 
safe  condition  as  an  ordinary,  prudent  man  would  use  in 
his  own  business,  then  the  law  is  that  when  the  plaintiff 
entered  into  the  service  of  the  defendant,  he  took  upon 
himself  all  the  risks  incident  to  such  service,  but  not 
those  caused  by  the  want  of  such  care  on  the  part  of  the 
defendant.  Riley  v.  R.  R.  Co.,  27  W.  Va.  152. 

c.  Measure  of  care — Definition  of. 

The  court  instructs  the  jury  that  the  measure  of  care 
which  should  have  been  taken  by  the  defendant  com- 
pany to  avoid  a  responsibility  of  the  injury  to  the  said 
-  is  that  which  a  person  of  ordinary  care,  prudence 
and  caution  would  use  if  his  own  interests  were  to  be 
effected,  or  the  whole  of  the  risk  were  his  own.  It  is  such 
care  as  a  person  of  ordinary  prudence  would  exercise  un- 
der the  circumstances  surrounding  the  accident  at  the 
time  of  the  injury.  McVey  v.  St.  Glair  Co.,  49  W.  Va.  420. 

d.  Ordinary  care — Definition  of. 

The  court  instructs  the  jury  that  by  "ordinary  care" 
is  meant  such  watchfulness,  caution  and  foresight  as, 
under  all  the  circumstances  of  the  particular  service,  a 
corporation  controlled  by  prudent  and  careful  officers 
ought  to  exercise.  Woodell  v.  Improvement  Co..  38  W. 
Va.  34. 

e.  Wrongful  dismissal  of  servant — Duty  of  servant  as 

to  seeking  other  employment — Effect  of. 

The  court  instructs  the  jury  that  if  a  person  is  hired  for 

service  for  a  given  term  and  is  wrongfully  dismissed  the 

law  imposes  upon  him  the  duty  to  seek  other  employment, 

and  to  the  extent  that  he  obtains  it  and  earns  wages,  or 


MASTER  AND  SERVANT.  307 

might  have  done  so,  his  damages  are  reduced.  Grover  v. 
Railroad  Co.,  53  W.  Va.  107. 

f.    When  master  not  guarantor  against  accidents. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  exercised  reasonable  care 

in  the  selection  of for  supervisor  of  its  road  and 

of  -  -  as  section  foreman,  and  that  they,  or  either  of 
them,  provided  for  the  work  done,  reasonably  safe  appli- 
ances or  instruments  for  doing  such  work,  then  there  was 
no  absolute  guaranty  against  accident  in  the  use  of  such 
appliances  or  instruments,  and  the  jury  should  find  for 
the  defendant,  unless  they  believe  from  a  preponderance 
of  the  evidence,  that  the  defendant  was  negligent  in  some 
other  respect  and  that  such  negligence  was  the  proximate 
cause  of  the  injury.  Skidmore  v.  Railroad  Co.,  41  W.  Va. 
300. 

2.       MACHINERY,     APPLIANCES,     MATERIAL     AND     PLACE     TO 
WORK. 

a.  Machinery  and  appliances. 

b.  Same — Defects  in — Knowledge  of  master  of. 

c.  Machinery,  appliances  and  place  to  work. 

d.  Same — Latent  defects — Master  not  liable  for. 

e.  Same — Delegation  of  duties. 

f.  Same — Presumptions   to  be  overcome  by   servant. 

g.  Place  to  work — Examination  of. 

h.  Same — Failure  to  make  examination  of. 

i.  Same — Master's  knowledge  of  danger, 

j.  Material — Defects  in. 

k.  Same — Defective  workmanship. 

1.  Foreman — Liability  of  master  for  negligent  acts  of. 

a.    Machinery  and  appliances — Character  of  required  to 

be  furnished. 
The  court  instructs  the  jury  that  the  defendant  was  not 


MASTER  AND  SERVANT. 


hound  to  furnish  to  the  plaintiff  the  safest  and  best  ap- 
pliances and  machinery  used,  with  which  to  work,  but 
tho  defendant  should  be  acquitted  of  fault  in  this  respect, 
if  the  appliances  and  machinery  which  they  did  furnish 
the  plaintiff  were  reasonably  safe  and  suitable.  Giebcll 
v.  Collins  Co.,  54  W.  Va.  526. 

b.  Same  —  Defects  in  —  Knowledge  of  master  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  and  circumstances  that  the  defendant  knew, 
or  by  the  exercise  of  due  care  and  caution  would  have 
known,  that  the  said  chain  was  not  of  sufficient  strength 
to  bear  the  pressure  necessary  to  be  brought  upon  it  in 
performing  the  work  required  to  be  done  by  the  plaintiff, 
and  further,  that  the  same  was  not  sufficient,  then  the 
defendant  was  guilty  of  negligence  and  liable  to  the  plain- 
tiff in  damages,  not  exceeding  the  sum  laid  in  the  declara- 
tion, unless  they  further  believe  from  all  the  evidence  and 
circumstances,  to  their  satisfaction,  that  the  plaintiff  also 
knew,  or  by  the  exercise  of  due  care  and  caution  would 
have  known  that  the  said  chain  was  insufficient  to  bear 
the  pressure  necessary  in  the  performance  of  the  work 
aforesaid.  Hoffman  v.  Dickinson,  31  W.  Va.  150. 

c.  Reasonably  suitable  and  safe  machinery  and  appli- 

ances and  safe  place  to  work  —  Duty  of  master  to 

furnish. 

The  court  instructs  the  jury  that  it  is  the  direct,  per- 
sonal and  absolute  obligation  of  the  master  to  provide 
reasonably  safe  and  suitable  machinery  and  appliances 
for  the  business.  This  includes  the  exercise  of  reasonable 
rare  in  furnishing  such  appliances.  The  master  must 
furnish  a  safe  place  in  which  his  servant  is  to  work.  And 
the  jury  are  further  instructed  that  a  master  is  liable 
for  any  injury  to  his  servants,  due  to  the  neglect  or  failure 


MASTER  AND  SERVANT.  309 

of  the  master  to  provide  such  safe  and  suitable  machinery 
and  appliances  for  the  business,  or  to  exercise  such  rea- 
sonable care  in  furnishing  such  appliances,  or  to  furnish 
his  servants  a  safe  place  in  which  to  work.  Giebell  v. 
Collins  Co.,  54  W.  Va.  525. 

d.  Latent  defects  master  not  liable  for. 

The  court  instructs  the  jury  that  it  was  the  duty  of 
the  defendant  to  provide  the  brakeman,  -  — ,  with  suffi- 
cient and  safe  machinery  and  appliances  to  be  used  in 
the  course  of  his  employment;  and  if  the  jury  believe  from 
the  evidence  that  he  received  the  injuries  that  resulted  in 
his  death  from  defects  in  such  machinery  or  appliances, 
while  using  them  in  the  regular  course  of  his  employ- 
ment, and  that  such  defects  were  unknown  to  him,  but 
that  the  defendant  in  the  exercise  of  ordinary  and  reason- 
able care  and  diligence  could  have  cured  them,  then  the 
defendant  is  liable  therefor;  but  if  they  believe  that  such 
defects  were  latent  and  not  discernible  by  ordinary  and 
reasonable  care  and  diligence,  and  also  that  they  were 
unknown,  then  the  defendant  is  not  liable.  Cooper  v. 
Railroad  Co.,  24  W.  Va.  42. 

e.  Same — Delegation  of  duties  by  master — Liability  of 

master. 

The  court  instructs  the  jury  that  the  duties  of  the 
master  to  provide  safe  and  suitable  machinery  and  appli- 
ances for  the  business  and  to  furnish  a  safe  place  in  which 
his  servant  is  to  work,  are  duties  which  the  master  can 
either  perform  personally  or  delegate  their  performance 
to  some  one  else;  but  if  both  the  master  and  the  person 
to  whom  such  duties  are  delegated  fail  in  the  performance 
of  any  of  said  duties,  and  injury  results  to  the  servant 
by  reason  of  said  failure,  the  master  is  liable  for  such 
injury.  Giebell  v.  Collins  Co.,  54  W.  Va.  525. 


310  MASTER  AND  SERVANT. 

f .  Same — Presumptions  to  be  overcome  by  servant. 
The  court  instructs  the  jury  that  before  the  plaintiff 

can  recover  from  the  defendant  in  this  case,  for  the  loss 
of  his  hand  while  in  said  company's  employ,  he  must 
overcome  two  presumptions :  First,  the  presumption  that 
the  defendant  did  provide  safe  and  suitable  machinery 
and  a  safe  and  suitable  place  in  which  to  work;  second, 
that  the  plaintiff  assumed  all  the  usual  and  ordinary 
hazards  of  the  business  in  which  he  was  engaged,  and 
that  unless  the  plaintiff  does  overcome  the  said  presump- 
tions by  a  preponderance  of  the  evidence  you  will  find 
for  the  defendant.  Giebell  v.  Collins  Co.,  54  W.  Va.  526. 

g.  Place  for  servant  to  work — Examination  of  required 

of  master. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  company,  or  mining  boss, 
did  not  make  the  proper  examination  of  the  particular 
entry  or  room  in  the  mines  where  -  -  was  killed,  and 
that  -  -  was  killed  in  consequence  of  such  neglect,  and 
without  any  fault  on  his  own  part,  then,  in  the  absence 
of  proof  of  contributory  negligence  on  the  part  of  de- 
ceased, the  defendant  is  liable.  Davis  v.  Coal  Co.,  34  W. 
Va.  509. 

h.    Same — Liability  of  master  for  failure  to  make  exami- 
nation of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  -  was  killed  by  reason  of  an  un- 
sound, unsafe  and  defective  roof  under  which  he  was 
working,  and  that  the  defendant  neglected  and  failed  to 
have  said  roof  carefully  inspected  by  persons  competent 
to  perform  that  duty,  and  that  the  plaintiff  did  not 
directly  contribute  to  the  injury,  then  the  negligence  of 
such  person  is  the  negligence  of  the  company  and  the 
company  is  liable.  Davis  v.  Coal  Co.,  34  W.  Va.  510. 


MASTER  AND  SERVANT.  311 

i.  Same — Master's  knowledge  of  danger — Entering  dan- 
gerous place  by  servant  under  direction  of  master. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  company,  or  any  person 
in  authority  representing  the  company  in  this  respect, 
had  knowledge  of  the  danger,  and  could,  by  due  care  and 
diligence,  have  known  the  danger,  and  that  the  deceased 
was  ignorant  of  the  danger,  and  was  without  fault  on  his 
own  part,  and  that  the  defendant  company  lulled  the  de- 
ceased into  a  sense  of  security  by  requesting,  directing  or 
ordering  him  to  drive  a  mule  to  haul  coal  in  a  certain 
dangerous  entry  of  the  mines  of  the  defendant  company, 
and  the  said  deceased,  acting  under  such  order  or  direc- 
tion, did  drive  such  mule  in  such  entry,  and  that  the  death 
of  said  -  —  was  caused  by  such  danger,  then  the  de- 
fendant company  was  guilty  of  negligence.  Davis  v. 
Coal  Co.,  34  W.  Va.  510. 

j.    Material — Defects  in — Duty  of  master  to  furnish  rea- 
sonably safe  and  sound  material. 

The  court  instructs  the  jury  that  the  law  imposes  upon 
the  defendant  company  the  duty  of  furnishing  its  em- 
ploye with  reasonably  safe  and  sound  material  with  which 
the  employe  may  be  engaged  in  and  about  the  doing  and 
performing  of  his  work,  and  a  failure  of  the  defendant 
company  to  discharge  this  duty  is,  in  the  law,  negligence 
for  which  the  company  is  liable.  Therefore,  in  this  case, 
if  the  jury  believe  from  the  evidence  that  the  scaffold  upon 
which  the  plaintiff's  decedent  was  working,  by  reason  of 
weakness  or  defectiveness  in  the  material  of  which  it  was 
constructed,  was  not  sufficiently  strong  to  support  itself, 
together  with  the  weight  that  the  scaffold  was  sustaining 
by  the  work  then  and  there  being  done  by  the  plaintiff's 
decedent  in  the  course  of  his  duties,  and  that  by  reason 
of  such  weakness  or  defectiveness  the  said  scaffold  fell, 
and  thereby  injured  the  plaintiff's  decedent  and  caused 


312  MASTER  AND  SERVANT. 

his  death,  then  it  is  the  duty  of  the  jury  to  find  for  the 
plaintiff.  Richards  v.  Iron  Works,  56  W.  Va.  519. 

k.    Same — Defective  workmanship — Accident  caused  by 

though  best  material  be  used. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  same  injury  would  have  resulted  to 
the  plaintiff's  intestate  even  if  the  best  of  material  had 
been  used,  unless  the  jury  believe  the  accident  resulted 
from  defective  workmanship  in  the  manner  in  which  scaf- 
fold was  put  together,  then  they  must  find  for  the  de- 
fendant. Richards  v.  Iron  Works,  56  W.  Va.  524. 

1.    Foreman — Liability  of  master  for  negligent  acts  of. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  witness ; —  was  put  in  charge  of 

the  construction  of  the  scaffold  in  question,  and  of  the 
men  constructing  the  same,  by  the  defendant,  then  his  acts 
in  the  performance  of  his  duties  as  a  foreman  in  the  con- 
struction of  said  scaffold  were  the  acts  of  the  defendant 
company,  and  the  defendant  is  liable  for  any  negligence 
or  want  of  proper  care  on  his  part,  or  the  workmen  in  his 
charge,  in  the  selection  of  the  timber  or  the  construction 
of  said  scaffold.  Richards  v.  Iron  Works,  56  W.  Va.  519. 

3.      ROADBEDS  AND  TRACKS. 

a.     Railroad  tracks — Duty  of  master  to  keep  clear  of 

dangerous  obstructions. 
1).     Same — Roadbeds  and  tracks. 

c.  Same — Presumption  as  to  master's  knowledge  of. 

d.  Same — Right  of  servant  to  presume  that  obstruc- 

tion would  be  removed. 

e.  Same — Machinery  and  structures — Duty  of  master 

as  to  safety  of. 


MASTER  AND  SERVANT.  313 

a.  Railroad  tracks — Duty  of  master  to  keep  clear  of  dan- 

gerous obstructions — What  servant  has  right  to  pre- 
sume. 

The  court  instructs  the  jury  that  it  was  the  duty  of  the 
defendant  to  use  all  reasonable  care  and  diligence  for  the 
safety  of  its  employes  and  to  keep  its  track  clear  from 
obstructions  immediately  thereon  or  so  near  thereto  as  to 
be  dangerous,  and  that  the  plaintiff  in  entering  into  the 
service  of  the  defendant,  had  a  right  to  presume  that  the 
defendant  had  discharged  this  duty,  and  the  plaintiff  in 
entering  the  employment  is  presumed  to  have  assumed 
only  those  ordinary  risks  connected  with  his  duties  which 
would  exist  after  the  discharge  by  the  defendant  of  the 
duty  above  set  out.  And  if  the  jury  believe  from  the 
evidence  that  the  defendant  failed  to  discharge  such  duty, 
and  that  the  injury  complained  of  resulted  to  the  plain- 
tiff from  such  failure,  without  fault  or  negligence  on  the 
part  of  the  plaintiff  at  the  time  of  the  injury,  which  or- 
dinary care  and  prudence  on  his  part  could  have  avoided, 
then  the  defendant  is  liable  for  such  injury.  Riley  v.  R. 
R.  Co.,  27  W.  Va.  150. 

b.  Same — Roadbeds  and  tracks. 

The  court  instructs  the  jury  that  it  was  the  duty  of 
the  defendant  railroad  company  to  keep  its  roadbed  and 
track  in  a  reasonably  safe  condition  for  the  passage  of 
its  train  along  and  over  the  same,  and  to  keep  the  same 
clear  of  obstructions  thereon,  or  in  close  and  dangerous 
proximity  thereto;  and  if  the  jury  believe  from  the  evi- 
dence in  this  case  that  there  was  standing  near  the  de- 
fendant's railroad  and  track  at  the  point  where  it  is  al- 
leged in  the  declaration  that  the  accident  herein  occurred, 
a  derrick,  with  an  arm  or  boom  attached  thereto,  and  that 
said  arm  or  boom  of  said  derrick  was  of  sufficient  length 
to  swing  over  the  roadbed  or  track  of  the  defendant,  and 
thereby  endanger  the  passage  of  trains  along  and  over 


314  MASTER  AND  SERVANT. 

said  track  at  said  point,  then  it  was  the  duty  of  the  de- 
fendant to  either  cause  said  derrick  and  arm  or  boom  at- 
tached thereto  to  be  removed,  or  to  see  that  the  same  was 
kept  securely  fastened  in  such  a  way  and  manner  as  not 
to  obstruct  the  passage  of  trains  along  said  track  at  said 
point.  And  that  this  duty  be  devolved  upon  the  defendant, 
although  said  derrick  may  not  have  been  upon  the  right 
of  way  of  the  defendant,  nor  upon  lands  under  its  imme- 
diate control.  McCreery  \.  Railroad  Co.,  43  W.  Va.  113. 

c.  Same — Presumption  as  to — Master's  knowledge  of. 
The  court  instructs  the  jury  that  an  employe  running 

on  the  trains  of  the  defendant  has  the  right  to  presume 
that  the  roadbed  is  in  a  reasonably  safe  condition  for  the 
passage  of  its  trains,  and  that  the  mere  fact  that  a  derrick 
is  standing  by  the  roadside  is  not  notice  that  it  is  danger- 
ous, unless  the  employe,  the  decedent  in  this  case,  had 
seen  it  upon  the  track,  or  knew  it  was  in  the  habit  of 
swinging  across  the  track,  and  after  such  knowledge  con- 
tinued to  run  defendant's  train  without  complaint.  Mc- 
Creery \.  Railroad  Co.,  43  W.  Va.  114. 

d.  Same — Right  of  servant  to  presume  that  obstruction 

would  be  removed. 

The  court  instructs  the  jury  that  although  the  employe, 
the  decedent,  did  in  fact  know  of  the  existence  of  the  der- 
rick in  question,  and  its  situation  with  reference  to  the 
roadbed  and  track,  yet  the  said  decedent  had  the  right  to 
presume  that  the  defendant  would  keep  said  derrick  so 
secured  as  to  make  it  reasonably  safe,  or  cause  the  same 
to  be  removed  after  the  completion  of  the  bridge;  and  it 
was  not  such  negligence  on  the  part  of  the  said  decedent 
to  remain  in  the  employment  of  the  said  defendant  as 
would  defeat  a  right  of  recovery  in  this  case.  McCreery 
v.  Railroad  Co.,  43  W.  Va.  115. 


MASTER  AND  SERVANT.  315 

e.     Same  and  machinery  and  structures — Duty  of  master 

not  to  expose  servant  to  perils  or  hazards. 
The  court  instructs  the  jury  that  it  was  the  duty  of 
the  defendant  not  to  expose  the  said  -  — ,  as  a  brake- 
man  on  its  train  of  cars  and  while  in  its  employ,  to  perils 
or  hazards,  against  which  he  could  be  guarded  by  proper 
diligence  on  defendant's  part,  and  that  the  said  defend- 
ant was  bound  to  exercise  ordinary  care,  not  only  in  sup- 
plying but  in  maintaining,  for  the  use  of  its  employes  on 
its  said  cars,  while  in  its  service,  sound  and  suitable 
machinery,  roadway,  structures,  and  instrumentalities, 
including  a  safe  track.  Woodell  v.  Improvement  Co.,  38 
W.  Va.  34. 

4.      WARNING,    INSTRUCTING    AND   GIVING     ORDERS     TO     SER- 
VANTS. 

a.  Young  and  inexperienced  servants  -  -  Instructions 

to. 

b.  Representations  by  servant  as  to  his  skill  to  work. 

c.  Same. 

a.  Young  and  inexperienced  servants — Duty  of  master 

who  sets  servant  to  work  in  a  place  of  danger  to 
give  notice  and  instructions  to. 

The  court  instructs  the  jury  that  it  is  the  duty  of  the 
master  who  sets  a  servant  to  work  in  a  place  of  danger  or 
with  dangerous  machinery  or  appliances,  to  give  such  no- 
tice and  instructions  as  are  reasonably  required  by  the 
youth,  inexperience  or  want  of  capacity  of  the  servant; 
and  failing  to  do  so,  the  master  is  liable  for  the  damage 
suffered  through  such  failure.  Giebell  v.  Collins  Co.,  54 
W.  Va.  525. 

b.  Same — Representations  by  servant  as  to  his  skill  to 

work. 
The  court  instructs  the  jury  that  the  fact  that  the  de- 


;J10  MASTER  AND  SERVANT. 

ceased  was  in  the  employment  of  the  defendant  company 
as  coal  loader  did  not  prevent  the  defendant  from  employ- 
ing the  deceased  to  work  as  a  helper  on  the  mine  machine, 
aiid  if  the  jury  believe  from  the  evidence  that  -  -  ap- 
proached the  deceased  while  he  was  engaged  at  his  work 
'as  coal  loader  and  enquired  of  him  whether  or  not  he  had 
worked  upon  a  mine  machine  as  helper  and  the  deceased 
informed  said  -  -  that  he  had  so  worked,  and  upon 
that  information  the  said  -  -  believing  it  to  be  true, 
requested  the  deceased  to  assist  him  as  a  helper  in  run- 
ning the  machine  in  room  No.  --to  cut  it  out,  and  the 
deceased  consented  thereto  without  making  any  sort  of 
objection,  then,  although  the  deceased  may  have  been  but 
seventeen  years  of  age,  if  the  jury  believe  from  the  evi- 
dence that  he  was  possessed  of  ordinary  intelligence,  the 
said  -  -  had  the  right  to  rely  upon  the  representa- 
tions of  the  deceased  to  him,  as  to  his  experience,  and  if 
under  such  circumstances  he  entered  upon  the  work  of 
assisting  to  run  said  mine  machine  as  a  helper,  the  de- 
ceased was  required  to  exercise  ordinary  care  to  avoid 
danger  and  injury  to  himself  while  so  at  wrork,  and  the 
said  -  -  would  not  be  required  to  instruct  him  as  to 
his  duties  unless  it  appeared  from  the  manner  in  which 
he  undertook  to  perform  and  did  perform  the  same,  that 
he  was  incapable  of  doing  it  for  want  of  knowledge  and 
information  as  to  what  the  duties  of  a  helper  upon  a  mine 
machine  were.  HcVey  v.  St.  Clair  Co.,  49  W.  Va.  422. 

c.    Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  deceased  represented  to  the  said 
-  that  he  had  wrorked  upon  a  mine  machine  as  a 
helper  and  that  he  consented  to  work  as  a  helper  in  run- 
ning the  machine  to  cut  out  room  Xo.  — ,  and  proceeded 
to  do  such  work,  and  if  the  said  -  -  did  not  discover 
before  his  injury  any  want  of  capacity  in  the  said , 


MASTER  AND  SERVANT.  317 

and  the  jury  believe  from  the  evidence  that  the  said  - 
was  a  person  of  ordinary  sense,  the  defendant  cannot  be 
held  for  the  negligence  on  the  part  of  the  said  - 
under  such  circumstances.    McVey  v.  St.  Clair  Co.,  49  W. 
Va.  422. 


5.       FELLOW   SERVANTS. 

a.  Superiority  in  authority. 

b.  Brakeman  and  brakeman. 

c.  Precaution  required  of  fellow  servants. 

[NOTE. — For  the  law  applicable  to  fellow  servants,  see 
Jackson  v.  Railroad  Co.,  43  W.  Va.  380,  overruling  num- 
erous prior  cases,  and  Sanderson  v.  Lwniber  Co.,  50  W. 
Va.  42,  and  Cochran  v.  Shanahan,  51  W.  Va.  137,  approv- 
ing the  Jackson  case.'] 

a.    When  superiority  in  power  and  authority  does  not 

destroy  relationship  of  fellow-servants. 
The  court  instructs  the  jury  that  the  fact  that  the 
said  -  —  was  superior  in  power  and  authority  over  the 
said  -  —  in  the  service  of  the  said  company  at  the  time 
of  said  accident  would  not,  of  itself,  destroy  the  relation 
of  co-servant  between  the  said  -  -  and  the  said  - 

and  if  they  believe  from  the  evidence  that  the  said 

was  capable  of  running  the  mine  machine,  and  was  work- 
ing within  the  scope  of  his  employment  at  the  time  of  the 
accident  and  that  the  said  -  -  then  and  there  knew 
how  to  perform  his  duties  as  helper  upon  the  said  ma- 
chine, they  would,  in  that  case,  be  co-servants,  and  al- 
though the  jury  might  believe  that  the  accident  resulted 
from  the  negligence  of  the  said  -  — ,  under  such  circum- 
stances the  plaintiff  would  not  be  entitled  to  recover  in 
this  case,  and  the  jury  should  so  find.  McVey  v.  St.  Clair 
Co.,  49  W.  Va.  421. 


318  MASTER  AND  SERVANT. 

b.  Master  not  liable  for  injury  to  one  brakeman  caused 

by  the  negligent  acts  of  another. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  injury  to  the  plaintiff  was  caused  by 
the  negligence  of  brakeman  -  — ,  then  in  such  case  such 
negligence  was  the  negligence  of  a  fellow  servant,  and 
for  which  negligence  no  recovery  can  be  had  against  the 
defendant  in  this  case.  Oliver  v.  Railroad  Co.,  42  W.  Va. 
714. 

c.  Precaution  required  of  servant  to  prevent  injury  to 

himself  and  fellow-servants. 

The  court  instructs  the  jury  that  the  decedent,  -  — , 
being  an  employe  of  the  defendant  at  the  time  he  received 
the  injury  from  which  he  died,  it  was  his  duty  to  take 
ordinary  precaution  to  prevent  injury  to  himself  and  his 
fellow-servants,  while  in  the  discharge  of  his  duty. 
Cooper  v.  R.  R.  Co.,  24  W.  Va.  43. 

6.      RISKS  ASSUMED  BY  SERVANTS. 

a.  Risks  incident  to  service — Duty  of  master. 

b.  Same — Negligence  of  master. 

c.  Extraordinary  risks. 

d.  Risks  assumed  by  minor  servants — Duty  of  master 

to  warn. 

e.  Negligence  of  fellow-servants. 

f.  Promulgation  of  rules  by  fellow-servants. 

g.  Increase  of  risks — Master's  knowledge  of  danger — 

Danger  unknown  to  servant, 
h.     Right  of  servant  to  rely  on  care  of  master, 
i.     Patent  danger. 

j.     Same — When  warning  as  to  not  necessary, 
k.     Opportunity  of  servant  to  know  danger. 
1.     Danger  known  to  servant — Continuing  in  exposure 

to  danger. 


MASTER  AND  SERVANT.  319 

m.     Same — Servant's  willful  encounter  of  danger, 
n.     Effect  of  servant  not  being  in  proper  discharge  of 

duty, 
o.     Compensation   paid   servant   in    consideration     of 

risks. 

a.  Risks  incident  to  service — Duty  of  master. 

The  court  instructs  the  jury  that  when  a  brakeman 
voluntarily  enters  the  service  of  a  railroad  company  he 
takes  upon  himself  the  hazards  and  dangers  properly  in- 
cident to  such  service;  but  such  a  railroad  compeny  is 
nevertheless  bound  to  take  all  reasonable  precautions  for 
the  safety  of  the  brakeman.  Cooper  v.  R.  R.  Go.,  24  W. 
Va.  42. 

b.  Same — Negligence  of  master. 

The  court  instructs  the  jury  that  a  person  entering  a 
perilous  employment,  such  as  laboring  on  or  near  the 
tracks  of  a  railroad  company,  himself  assumes  all  the 
ordinary  and  usual  risks  attending  the  employment,  and 
if  he  is  injured  by  reason  of  such  ordinary  risks,  he  can- 
not recover  from  his  employer  damages  for  the  injury, 
but  he  does  not  assume  the  risk  of  negligence  on  the  part 
of  his  employer.  Unfried  v.  Railroad  Co.,  34  W.  Va.  268. 

c.  Extraordinary  risks. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  injury  to  the  plaintiff  was  caused 
by  his  attempting  to  make  a  coupling  of  two  -  —  cars, 
such  act  of  coupling  was  not  exposing  the  plaintiff  to 
extraordinary  risks  or  hazards  not  naturally  incident  to 
the  service  of  the  plaintiff  as  a  brakeman.  Oliver  v.  Rail- 
road Co.,  42  W.  Va.  712. 

d.  Risks  assumed  by  minor  servant — Duty  of  master  to 

warn. 
The  court  instructs  the  jury  that  while  it  is  a  general 


:fc>0  MASTER  AND  SERVANT. 

rule  that  an  employe  accepts  service  subject  to  risks  in- 
cidental to  it,  and  when  the  appliances  or  means  or 
methods  of  work  are  known  to  the  employe  he  can  make 
no  claim  upon  the  employer  to  charge  them,  and  if  injury 
results  therefrom  can  recover  no  damages;  yet  this  does 
not  relieve  the  employer  from  the  obligation  which  makes 
it  his  imperative  duty  to  warn  the  employe  of  danger 
and  instruct  him  how  to  avoid  the  danger,  even  when  the 
danger  is  visible  and  open  to  observation,  if  through 
youth,  inexperience  or  lack  of  ability,  the  employe  is  in- 
competent to  understand  fully  and  appreciate  the  nature 
and  extent  of  the  danger.  Giebell  v.  Collins  Co.,  54  W. 
Va.  526. 

e.  Negligence  of  fellow-servant. 

The  court  instructs  the  jury  that  a  servant  entering  the 
employment  of  a  master  assumes  all  the  ordinary  risks 
of  such  employment  and  service,  and  one  of  such  ordinary 
risks  so  assumed  by  the  servant  is  that  of  liability  for 
negligence  of  a  fellow-servant  in  a  common  employment 
of  such  master.  Daniels  v.  Railway  Co.,  36  W.  Va.  403. 

f.  Promulgation  of  rules  by  fellow-servants. 

The  court  instructs  the  jury  that  while  it  was  the  duty 
of  the  defendant  railroad  company  to  make  and  promul- 
gate proper  rules  for  the  protection  of  its  employes  yet  it 
was  not  required  that  the  defendant  should  see  to  it,  per- 
sonally, that  notice  came  to  the  knowledge  of  all  those 
to  be  governed  thereby,  and  that  if  the  defendant  exer- 
cised due  care  and  diligence  in  choosing  competent  ser- 
ants  to  receive  and  transmit  the  necessary  rules,  the 
negligence  by  such  servants  in  the  performance  of  it  is  a 
risk  of  the  employment  that  the  plaintiff  took  when  he 
entered  the  service  of  the  defendant.  Oliver  v.  Railroad 
Co..  42  W.  Va.  714. 


MASTER  AND  SERVANT.  321 

g.    Increase  of  risks  —  Master's  knowledge  of  danger  — 

Danger  unknown  to  servant. 

The  court  instructs  the  jury  that  if  they  believe  from 
ihe  evidence  that  there  was  a  -  -  standing  upon  or 
alongside  of  the  bank  of  the  defendant's  railroad  in  dan- 
gerous proximity  to  the  track  or  cars  or  engines  and 
tender  passing  over  said  track  whereby  the  risk  of  injury 
to  the  plaintiff  in  the  discharge  of  his  duties  was  in- 
creased beyond  the  ordinary  risks  incident  to  such  em- 
ployment, and  that  said  -  -  was  allowed  to  remain 
there  after  the  defendant  knew  of  its  situation,  or  might, 
by  the  exercise  of  reasonable  care  and  diligence,  have 
known  thereof,  and  if  they  further  believe  that  the  plain- 
tiff received  the  injury  complained  of  in  consequence  of 
such  -  -  having  remained  there,  after  the  defendant 
knew  or  might  have  known  by  the  use  of  care  and  dili- 
gence of  its  situation,  and  that  the  plaintiff,  at  the  time 
he  received  such  injury  was  exercising  ordinary  care  and 
prudence  as  a  brakeman  and  was  in  the  discharge  of  his 
duties  as  such  at  the  time  the  injury  occurred,  and  did 
not  know  of  the  situation  of  said  -  -  or  might  not 
have  known  of  it  by  the  exercise  of  reasonable  care  and 
prudence,  then  the  defendant  is  liable  for  said  injury. 
v.  R.  R.  Co.,  27  W.  Va.  150. 


h.    Right  of  servant  to  rely  on  care  of  master  —  Careless 

and  needless  exposure  to  risks  and  danger. 
The  court  instructs  the  jury  that  the  plaintiff's  intes- 
tate had  the  right  to  assume  his  foreman,  -  —  ,  would 
give  all  proper  attention  to  his  safety,  and  that  he  would 
not  be  carelessly  and  needlessly  exposed  to  risks  and 
dangers  not  necessarily  resulting  from  his  occupation, 
and  which  might  have  been  prevented,  or  much  dimin- 
ished by  ordinary  care  and  precaution  on  the  part  of  his 
master  or  his  representative.  Turner  v.  Railroad  Co.,  40 
W.  Va.  680. 


;;L'L>  MASTER  AND  SERVANT. 

i.    Patent  danger. 

The  court  instructs  the  jury  that  if  the  deceased  volun- 
tarily entered  into  the  service  of  the  defendant  as  brake- 
man  upon  its  construction  train,  then  he  is  held  and  must 
be  taken  to  have  assumed  not  only  all  risks  ordinarily  iii- 
cident  to  the  business,  but  also  all  other  open  and  visible 
risks,  whether  usually  incident  to  the  business  or  not; 
and  if  a  visible  -  -  caused  his  injury,  partly  over  the 
roadway  of  the  defendant,  the  fact  that  he  had  forgotten 
its  existence,  or  failed  to  remember  it,  and  thus  suffered 
the  injury,  furnishes  no  excuse  for  the  deceased,  and  the 
jury  should  find  for  the  defendant.  Woodell  v.  Impron-- 
ment  Co.,  38  W.  Va.  38. 

j.     Same — When  warning  as  to  not  necessary. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  it  was  dangerous  for  the  plaintiff  to 
ride  upon  the  truck  upon  which  he  was  riding  when  the 
accident  occurred,  and  dangerous  for  him  to  ride  thereon 
in  a  standing  position,  and  if  they  further  believe  that 
such  danger  was  obvious  to  the  plaintiff,  and  was  under- 
stood and  appreciated  by  him,  the  fact  that  the  defend- 
ant's foreman  may  have  seen  the  plaintiff,  immediately 
prior  to  the  accident,  standing  upon  the  said  truck,  and 
may  not,  at  that  time,  ordered  or  wrarned  him  not  to  ride 
thereon,  give  the  plaintiff  no  right  to  recover  in  this 
action  because  of  such  failure  to  so  warn.  Rccsc  \.  Kail- 
ro<n1  Co..  42  W.  Va.  341. 

k.     Opportunity  of  servant  to  know  danger. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  in  this  case  that  decedent,  for  two  or  three 
months  prior  to  his  death,  had  been  in  the  service  of  the 
defendant,  under  foreman  -  — ,  working  upon  the  de- 
fendant's railroad  track  putting  in  cattle  guards,  and  to 
his  knowledge  the  railroad  company  during  that  time  had 


MASTER  AND  SERVANT.  323 

been  daily  running  on  said  road  divers  extra  trains,  with- 
out previous  notice,  back  and  forth  from  one  point  to 
another  at  regular  hours  of  the  day,  and  that  said  de- 
cedent, without  compulsion,  got  upon  the  hand  car  on 

the  morning  of ,  knowing  that  his  foreman  had  no 

knowledge  or  opportunity  of  knowledge  that  extra  No.  — 
would  be  approaching  that  morning,  and  also  knew  that 
his  foreman  had  not  flagged  around  the  curve  where  the 
accident  occurred,  then  the  jury  are  instructed  that  the 
said  decedent  assumed  the  risk  of  a  collision  between  his 
hand  car  and  any  extra  which  might  meet  them  on  said 
curve;  Provided  the  jury  further  believe  from  the  evidence 
that  the  decedent  had  knowledge  that  it  was  the  duty  of 
said  foreman  to  do  or  have  done  such  flagging.  Turner  v. 
Railroad  Co.,  40  W.  Va.  682. 

1.    Danger  known  to  servant — Continuing  in  exposure  to 

danger. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  —  -  was  a  foreman  of  the  defendant 
in  charge  of  a  gang  of  laborers  putting  in  cattle-guards 
along  defendant's  line;  that  the  plaintiff's  intestate  was 
a  member  of  such  gang,  and  subject  to  the  authority  of 
said  -  — ;  that  on  the  morning  of  -  — ,  the  said  de- 
cedent, in  company  with  his  said  foreman  and  the  other 
laborers  of  the  gang  under  him,  got  on  the  hand  car  on 
the  defendant's  railroad  track  willingly  and  without  ob- 
jection, and  rode  along  on  said  hand  car  in  the  direction 
of  -  — ,  through  cuts  and  around  curves,  without  the 
foreman  of  the  crew,  or  any  member  thereof  by  his  direc- 
tion, being  ahead  with  a  flag  or  other  signal  to  give  the 
hand  car  and  its  occupants  warning  of  danger  by  reason 
of  approaching  trains  or  otherwise,  and  the  absence  of 
such  flagging  was  known  to  said  decedent,  and  he  still 
without  objection  remained  on  the  hand  car — then,  un- 
der such  circumstances,  the  said  decedent  accepted  and 


324  MASTER  AND  SERVANT. 

assumed  the  risk  of  encountering  or  coming  in  contact 
with  any  extra  train  or  wild  engine  that  might  be  on  the 
track,  and  which  could  be  escaped  by  such  flagging;  and 
under  such  circumstances,  if  the  jury  find  that  the  neglect 
of  the  foreman  to  flag  was  the  proximate  cause  of  the 
injury  to  the  decedent,  they  can  not  find  for  the  plaintiff, 
but  must  return  a  verdict  for  the  defendant;  Provided, 
the  jury  further  believe  from  the  evidence  that  the  de- 
cedent had  knowledge  of  the  duties  of  said  foreman  to 
do  such  flagging,  or  cause  it  to  be  done,  and  if  the  jury 
believe  from  the  evidence  that  the  decedent  had  knowl- 
edge at  the  time  of  the  accident  that  said  foreman  had 
not  so  done  his  duty.  Turner  v.  Railroad  Co.,  40  W.  Va. 
682. 

m.     Same — Servant's  willful  encountering  danger. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  wilfully  encountered  the 
dangers  of  coupling  cars,  which  were  known  to  him  or 
were  notorious,  that  in  such  case  the  defendant  railroad 
company  is  not  responsible  for  an  injury  occasioned 
thereby.  Oliver  v.  Railroad  Co.,  42  W.  Va,  712. 

n.    Effect  of  servant  not  being  in  proper  discharge  of  duty 

when  injury  occurred. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff,  before  the  occurrence  of 
the  injury  complained  of,  had  a  reasonable  opportunity 
to  know  that  it  was  dangerous  to  lean  over  on  the  right 
hand  side  of  the  engine  and  tender  for  the  purpose  of 
watching  the  wheels  or  for  any  other  purpose,  and  that 
his  injury  was  caused  by  his  so  leaning  over,  and  that  in 
doing  so  he  was  not  in  the  proper  discharge  of  his  duties, 
then  the  plaintiff  cannot  recover  in  this  action.  Riley  v. 
/?.  7?.  Co.,  27  W.  Va.  152. 


MASTER  AND  SERVANT.  325 

o.  Compensation  paid  servant  in  consideration  of  risks. 
The  court  instructs  the  jury  that  a  brakeman  who  en- 
ters the  employment  of  a  railroad  company  in  considera- 
tion of  the  compensation  to  be  paid  him,  takes  upon  him- 
self the  ordinary  risks  of  employment,  and  the  railroad 
company  is  not  the  warrantor  of  the  safety  of  the  brake- 
man.  Cooper  v.  Railroad  Co.,  24  W.  -Va.  41. 

7.      CONTRIBUTORY  NEGLIGENCE. 

a.  Care  required  of  servants — Perilous  positions. 

b.  Same — Opportunity  and  duty  of  servants  to  avoid 

perilous  positions. 

c.  Obviousness  of  danger — Preponderance  of  evidence. 

d.  Knowingly  assuming  place  of   danger — Failure   to 

avert  danger. 

e.  Same. 

f.  Continuing  in  service  after  knowledge  of  danger. 

g.  Minority  of  servant — Capacity  of  to  contribute  to 

injury. 

h.  Same — Knowledge  and  experience  of  minor  ser- 
vant. 

i.  Right  of  master  to  prescribe  rules  for  government 
of  servant. 

j.  Agreement  of  servant  to  obey  rules — Injuries  re- 
sulting from  violation  of. 

k.     Same. 

1.  Servant's  knowledge  of  rules — Injuries  resulting 
from  violation  of. 

m.     Same. 

n.     Same — Disobedience  of  rules. 

o.     Same. 

p.     Sufficient  compliance  with  rules. 

q.    Proximate  cause  of  injury. 

r.     Burden  of  proof — Preponderance  of  evidence. 


MASTER  AND  SERVANT 


s.     Right  to  recover  —  When  not  affected  by  contribu- 

tory negligence. 
t.     fc*ame  —  Preponderance  of  evidence. 

a.  Care  required  of  servants  —  Perilous  positions. 

The  court  instructs  the  jury  that  although  the  cars 
attached  to  the  train  on  which  plaintiff  was  injured  was 
so  crowded  on  the  morning  of  -  —  ,  -  —  ,  that  plain- 
tiff could  not  find  a  seat  therein,  that  fact  did  not  justify 
him,  in  order  to  reach  his  employment,  in  getting  on  the 
engine  of  that  train  in  a  dangerous  or  perilous  position. 
Downey  v.  Railway  Co.,  28  W.  Va.  742. 

b.  Same  —  Opportunity  and   duty   of  servant  to   avoid 

perilous  position. 

The  court  instructs  the  jury  that  although  the  cars  at- 
tached to  the  train  on  which  plaintiff  was  injured  were  so 
crowded  on  the  morning  of  -  —  ,  -  —  ,  when  plain- 
tiff went  to  the  train  to  ride  to  his  employment  that  plain- 
tiff could  not  get  a  seat  therein,  and  by  reason  thereof 
plaintiff  went  to  the  pilot  of  the  engine  to  ride  up  thereon, 
yet  before  the  accident  in  which  plaintiff  was  injured  so 
many  persons  vacated  the  said  cars  that  the  plaintiff 
could  have  found  a  seat  in  said  cars,  and  these  facts  were 
known  to  the  plaintiff  before  the  accident  and  when  the 
train  had  come  to  a  full  stop  so  that  plaintiff  could  have 
gone  from  the  pilot  to  the  cars,  and  the  pilot  was  a  dan- 
gerous or  perilous  place  for  plaintiff  to  occupy,  then  it 
was  his  duty  to  leave  said  pilot  and  go  to  said  cars. 
Downey  v.  Railicay  Co.,  28  W.  Va.  742. 

c.  Obviousness  of  danger  —  Preponderance  of  evidence. 
The  court  instructs  the  jury  that  if  at  or  before  the 

accident  in  question,  in  which  the  plaintiff  was  injured, 
the  appearance  of  the  tender  was  such  as  to  indicate 
danger  to  a  person  of  ordinary  prudence  and  that  such 


MASTER  AND  SERVANT.  327 

appearance  was  as  obvious  to  the  plaintiff  as  to  the  wit- 
ness,   ,  then  the  jury  should  find  for  the  defendant,  un- 
less they  believe  from  the  preponderance  of  the  evidence, 
that  the  defendant  was  negligent  in  some  other  respect 
and  that  such  negligence  was  the  proximate  cause  of  the 
injury.  Skidmore  v.  Railroad  Co.,  41  W.  Va.  299. 

d.  Knowingly  assuming  place   of  danger  —  Failure  to 

avert  danger. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  knowingly  and  negligently 
assumed  a  place  of  danger,  and  negligently  failed  to  do 
his  duty  in  averting  such  danger,  and  his  negligence  was 
one  of  the  proximate  causes  of  the  injury,  then  he  is  not 
entitled  to  recover  damages  from  the  defendant  com- 
pany on  account  of  his  injury.  Eastburn  v.  R.  R.  Co.,  34 
W.  Va.  686. 

e.  Same. 

The  court  instructs  the  jury  that  although  they  may 
believe  from  the  evidence  that  -  -  was  not  a  capable 
man  to  run  the  mine  machine  referred  to  by  the  evidence 
in  this  case,  and  did  not  run  such  machine  in  a  capable 
manner  at  the  time  of  the  injury  to  -  — ,  yet,  if  they 
believe  from  the  evidence  that  the  said  -  -  had  knowl- 
edge of  the  danger  of  said  machine  when  in  motion  and 
could  have  avoided  the  injury  to  himself  by  the  use  of 
ordinary  care  upon  his  part,  he,  the  said  -  — ,  would 
be  guilty  of  contributory  negligence  and  the  jury  should 
find  for  the  defendant.  M cVey  v.  8t.  Glair  Co.,  49  W.  Va. 
420. 

f .  Same  —  Continuing   in   service   after   knowledge   of 

danger. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  was  guilty  of  negligence 


328  MASTER  AND  SERVANT. 

by  allowing  the  tree  with  its  projecting  limb  to  remain 
in  dangerous  proximity  to  the  roadway  of  the  defendant, 
and  that  the  deceased  was  injured  by  coming  in  contact 
with  said  limb  on  his  passing  train,  yet  the  plaintiff  is 
not  entitled  to  recover  in  this  action,  if  the  jury  further 
find  from  the  evidence,  that  the  deceased  for  some  days 
before  the  accident  had  been  fully  apprised  and  made 
aware  of  the  dangerous  position  and  character  of  said 
limb,  and  the  probable  danger  that  might  result  to  him 
in  passing  it  on  his  train  and  spoke  of  such  danger  to 
others,  the  continuing  of  the  deceased  in  such  service, 
after  such  knowledge  and  anticipation  of  danger,  con- 
stituting contributory  negligence,  and  the  jury  must  find 
for  the  defendant.  Woodell  v.  Improvement  Co.,  38  W. 
Va.  37. 

g.    Minority  of  servant — Capacity  of  to  contribute  to 

injury. 

The  court  instructs  the  jury  that  in  determining 
whether  the  plaintiff,  a  boy  sixteen  years  of  age,  was 
guilt}*  of  contributory  negligence,  the  jury  have  the  right 
to  take  into  consideration  his  age,  capacity  and  ex- 
perience, and  although  he  may  have  been  guilty  of  an  act 
or  acts  which  in  an  adult  would  have  amounted  to  an 
assumption  of  the  risk  of  injury  and  a  waiver  of  the 
duty  the  master  owes  him,  yet  he  cannot  be  held  to  have 
assumed  any  such  risk  or  to  have  waived  any  such  duty 
which  one  of  his  age,  discretion  and  experience  could 
not  fully  comprehend  and  appreciate.  Giebell  v.  Collins 
Co.,  54  W.  Va.  526. 

h.  Same — Knowledge  and  experience  of  minor  servants. 
The  court  instructs  the  jury  that  a  boy  seventeen  years 
of  age,  with  ordinar  ysense,  can  be  held  in  law  for 
contributory  negligence  and  this  rule  applies  to  whatever 
may  be  the  age  of  the  youth,  provided  he  has  reached  a 


MASTER  AND  SERVANT.  329 

period  of  life  when  he  is  capable  because  of  his  knowl- 
edge and  experience,  to  exercise  ordinary  care  and  caution 
in  the  performance  of  his  duties  as  servant  under  his 
master.  McVey  v.  8t.  Glair  Co.,  49  W.  Va.  423. 

i.  Right  of  master  to  prescribe  rules  for  government  of 
servants — Servant's  knowledge  of  rules  and  con- 
tinuance in  service. 

The  court  instructs  the  jury  that  the  defendant  com- 
pany had  a  right  to  prescribe  rules  relating  to  section 
foremen,  and  the  jury  cannot  consider  or  determine 
whether  such  rules  are  reasonable  or  not,  Provided,  the 
jury  further  believe  from  the  evidence  that  the  decedent 
had  knowledge  of  such  rules  and  continued  in  the  service 
of  the  defendant  with  such  knowledge.  Criswell  v.  Rail- 
road Co.,  30  W.  Va.  809. 

j.  Agreement  of  servant  to  obey  rules — Injuries  result- 
ing from  violation  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  in  engaging  in  the  service 
of  the  company,  agreed  that  he  would  not  attempt  to 
get  on  or  off  the  engines  or  trains  in  motion,  and  that  he 
did  not  comply  with  that  agreement,  but  in  attempting 
to  get  on  a  moving  train,  in  disobedience  of  the  rules 
and  his  agreement,  when  he  was  not  compelled  by  accident 
to  get  on,  he  stumbled  over  the  wires  complained  of,  but 
that  he  would  not  have  been  hurt  had  the  engine  been 
standing  still,  then  such  an  attempt  to  get  on  a  moving 
engine  was  negligence,  and  the  plaintiff  cannot  recover. 
Overly  v.  Railway  Co.,  37  W.  Va.  534. 

k.    Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  had  established  a  set  of 
rules  for  the  direction  and  regulation  of  its  employes  in 


;;:;il  MASTER  AND  SERVANT. 

the  conduct  of  its  business,  and  that  the  plaintiff  had 
agreed,  when  entering  into  the  employment  of  the  de- 
fendant, to  obey  the  rules  so  made  by  the  said  defend- 
ant, and  that  said  rules  forbid  and  warn  the  employes  not 
to  jump  on  or  off  trains  or  engines  in  motion,,  and  that 
the  plaintiff,  in  violation  of  said  rule  or  warning,  under- 
took to  jump  on  an  engine  while  in  motion,  stumbled  and 
fell,  and  had  his  hand  mashed  or  cut  off  by  the  engine 
while  in  motion,  and  that  he  would  not  have  had  his  hand 
mashed  or  cut  off  by  falling  or  stumbling  over  the  wires 
complained  of  if  his  said  engine  had  not  been  in  motion, 
then  the  violation  of  said  rule  or  warning  was  such 
proximate,  contributory  negligence  on  his  part  as  prevents 
him  from  recovering  any  damages  in  this  case  from  the 
defendant,  and  you  should  find  for  the  defendant.  Overby 
v.  Railway  Co.,  37  W.  Va.  535. 

1.     Servant's  knowledge  of  rules — Injuries  sustained  by 

acting  in  violation  of  rules. 

The  court  instructs  the  jury  that  the  defendant  was 
bound  to  take  all  reasonable  precautions  for  the  safety 
of  the  laborers  employed  by  it  on  its  track,including  the 
plaintiff's  decedent;  yet  the  defendant  had  the  right  to 
make  such  rules  and  regulations  for  the  conduct  of  its 
servants  and  agents,  while  engaged  in  its  service,  as  in 
its  judgment  were  reasonable  and  proper,  or  would  con- 
duce to  the  safety  and  comfort  of  its  employes;  and  all 
servants,  while  engaged  in  such  service  with  a  knowledge 
of  such  rules  and  regulations,  were  bound  to  act  in  con- 
formity therewith;  and  if  the  injuries  were  sus- 
sustained  by  them  while  acting  in  violation  thereof,  no 
recovery  can  be  had  of  the  defendant  therefor,  if  such  vio- 
lation was  the  cause  of,  or  materially  and  directly  con- 
tributed to  such  injury.  Crlswell  v.  R.  R.  Co.,  30  W.  Va. 
808. 


MASTER  AND  SERVANT.  331 

m.     Same. 

The  court  instructs  the  jury  that  if  by  the  rules  and 
regulations  of  the  defendant  in  force  at  the  time  of  the 
injury  complained  of  in  this  case,  the  engineers  in  charge 
of  its  engines  were  prohibiting  from  permitting  plaintiff 
to  ride  on  the  pilot  of  its  engines,  or  on  its  engines,  and 
the  plaintiff,  at  the  time,  had  knowledge  of  the  defend- 
ant's rules  on  that  subject,  then  the  mere  knowledge  or 
consent  of  the  engineer  in  charge  of  the  engine  on  which 
plaintiff  was  riding  when  injured,  that  plaintiff  was  rid- 
ing on  the  pilot  of  said  engine,  does  not  entitle  plain- 
tiff to  any  greater  rights  against  defendant  in  this  cnse 
than  he  could  have  if  defendant's  engineer  had  been 
wholly  ignorant  of  the  fact  that  plaintiff  was  riding  on 
the  pilot  of  said  engine.  Doicney  v.  Railway  Co.,  28  W. 
Va.  739. 

n.     Same — Disobedience  of  rules. 

The  court  instructs  the  jury  that  the  defendant,  the 
-  railroad  company,  had  a  right  to  make  a  rule  re- 
quiring their  employes  not  to  get  on  or  off  moving  trains 
or  engines,  and  if  the  jury  find  from  the  evidence  that 
the  plaintiff  disobeyed  such  rule,  and  was  injured  while 
attempting  to  get  on  a  moving  engine,  and  that  he  was 
not  compelled  by  sudden  danger  to  jump  on  the  engine, 
and  would  not  have  been  hurt  if  the  engine  had  been 
standing  still,  then  the  plaintiff  cannot  recover,  and  the 
jury  is  directed  to  find  for  the  defendant.  Overby  v.  Rail- 
way Co.,  37.  W.  Va.  535. 

o.    Same 

The  court  instructs  the  jury  that  getting  on  a  moving 
engine  when  such  action  was  voluntary,  and  could  have 
been  avoided,  is,  of  itself,  negligence,  and  if  the  jury 
believe  that  the  plaintiff  in  attempting  to  get  on  an  en- 


;{&>  MASTER  AND  SERVANT. 

gine  after  night,  while  it  was  in  motion,  in  violation  of 
a  rule  of  the  company,  fell  and  was  hurt,  but  that  he 
would  not  have  been  hurt  had  the  engine  been  standing 
still,  then  they  must  find  for  the  defendant.  Overby  v. 
Railway  Co.,  37  W.  Va.  535. 

p.     Concerning  sufficient  compliance  with  rules. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  decedent,  at  the  time  of  the  acci- 
dent, was  standing  either  in  the  door  of  the  front  car  as 
was  moving,  or  looking  through  the  glass  in  the  door,  and 
that  he  could  see  ahead  of  the  train  as  well  as  if  he.  had 
been  on  the  outside,  that  would  be  a  sufficient  compliance 
with  the  rule  requiring  him  to  take  a  conspicuous  place 
on  the  front  of  the  car.  McCreery  v.  Railroad  Co.,  43 
W.  Va.  114. 

q.    Proximate  cause  of  injury. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  there  was  a  rule  of  the  defendant  pro- 
hibiting its  employes  from  getting  on  and  off  moving 
trains,  and  that  the  plaintiff  disobeyed  that  rule,  that 
disobedience  of  the  rule  by  the  plaintiff  will  not  of  itself 
defeat  the  plaintiff's  right  to  recover,  unless  it  further 
appears  from  the  evidence  in  this  case  that  the  disobe- 
dience of  said  rule  was  the  proximate  cause  of  the  injury 
complained  of.  Overby  v.  Raihcay  Co.,  37  W.  Va.  534. 

r.    Burden  of  proof — Preponderance  of  evidence. 

The  court  instructs  the  jury  that  where  the  defense  is 
contributory  negligence  on  the  part  of  the  plaintiff's  dece- 
dent, the  burden  of  proving  contributory  negligence  is  on 
the  defendant,  and  to  sustain  it,  it  must  have  a  preponder- 
ance of  the  evidence,  that  is  from  all  the  evidence  in  the 
case.  McCreery  v.  Railroad  Co.,  43  W.  Va.  114. 


MESNE  PROFITS.  333 

s.    When  right  to  recover  not  affected  by  contributory 

negligence. 

The  court  instructs  the  jury  that  the  right  of  the  plain- 
tiff to  recover  in  this  action,  if  the  jury  believe  from  the 
evidence  that  he  is  entitled  to  recover,  is  not  affected  by 
his  having  contributed  to  the  injury  complained  of,  if 
the  jury  believe  from  the  evidence  that  he  did  contribute 
to  his  own  injury,  unless  he  was  in  fault  in  so  doing. 
Giebell  v.  Collins  Co.,  54  W.  Va.  525. 

t.     Same — Preponderance  of  evidence. 

The  court  instructs  the  jury  that  even  if  they  believe 
from  the  evidence  that  the  defendant  was  guilty  of  negli- 
gence in  allowing  a  -  -  to  remain  in  dangerous  prox- 
imity to  its  road,  and  that  the  plaintiff  was  knocked  off 
the  engine  by  said  -  -  and  injured,  still  the  plaintiff 
is  not  entitled  to  recover  in  this  action,  if  they  believe 
from  the  evidence  that  he,  by  his  neglgence  contributed 
directly,  in  any  degree,  to  the  injury  complained  of;  but 
to  bar  the  plaintiff  from  recovery,  his  alleged  act  of  neg- 
ligence must  have  been  such  as  he  could  reasonably  expect 
would  result  in  his  injury,  and  moreover,  such  negligence 
must  be  shown  by  a  preponderance  of  all  the  evidence. 
Rileij  v.  Railroad  Co.,  27  W.  Va.  154. 


CHAPTER  50. 
MESNE  PROFITS. 


a.    Allowance  for  permanent  and  valuable  improvements 

— Improvements  when  title  deemed  good. 
The   court   instructs   the  jury   that   they   should   not 
allow  the  defendant  anything  for  improvements  unless 
such  improvements  were  permanent  and   valuable,  and 


334  MUNICIPAL  CORPORATIONS. 

further,  also,  that  unless  such  improvements  were  made 
at  a  time  when  there  was  reason  to  believe  the  title  good. 
Botkin  v.  Arnold,  48  W.  Va.  111. 


CHAPTER  51. 
MUNICIPAL  CORPORATIONS. 

J.      DEFECTIVE  STREETS  AND  SIDEWALKS. 

2.  CHANGE  OF  GRADE  OF  STREETS. 

3.  SURFACE  WATERS — DRAINS  AND  SEWERS. 

1.       DEFECTIVE  STREETS  AND  SIDEWALKS. 

a.  Ownership  of  or  control  of  streets. 

b.  Powers,  duties  and  liabilities  of  municipal  corpora- 

tions. 

c.  Same. 

d.  Same — Contributory  negligence. 

e.  Same — Contributory  negligence — Burden  of  proof. 

f.  Care  and  caution  required  of  municipal  corpora- 

tions. 

g.  Temporary  obstructions  to  sidewalks  while  being 

graded. 

h.     Same — For  grading  and  paving. 

i.  Improvements  made  by  property  owners  by  direc- 
tion of  city  authorities. 

j.  Liability  of  property  owners  for  injuries  caused  by 
excavations  in  public  streets. 

k.  Same — When  property  owner  prohibited  from  fenc- 
ing off  excavations. 

1.  Same — When  excavation  exists  at  time  of  purchase 
of  property. 

m.    Condition  of  street  or  sidewalk  at  time  of  injury. 


MUNICIPAL  CORPORATIONS.  335 

n.     Cause  of  injury — Remote  cause  of  injury. 

o.     What  necessary  for  person  injured  to  allege  and 

prove, 
p.     Previous  knowledge  of  person  injured  of  defects. 

a.  Ownership  of  or  control  over  streets. 

The  court  instructs  the  jury  that  the  mere  fact  that 
the  side-walk  complained  of  was  within  the  corporate 
rimits  of  the  defendant  town  is  not  sufficient  to  charge 
the  town  with  the  duty  of  keeping  it  in  good  repair  and 
safe  condition.  To  charge  the  defendant  with  that  duty, 
it  must  be  proved  in  the  case  that  it  is  within  the 
limits  or  lines  of  the  public  street  or  road  in  the  town, 
made  so  by  the  council  of  the  town,  or  that  the  authori- 
ties of  the  town  have  exercised  control  over  it  before  the 
happening  of  the  injury  to  the  plaintiff.  Chapman  v. 
Town  of  Milton,  31  W.  Va.  387. 

b.  Powers,  duties  and  liabilities  of  municipal  corpora- 

tions. 

The  court  instructs  the  jury  that  when  a  city  is  in- 
corporated, and  is  given  control  over  the  streets  and 
.sidewalks  within  its  corporate  limits,  and  is  empowered 
to  provide  the  means  to  make  and  repair  them,  the  cor- 
poration not  only  assumes  this  duty,  but  by  implication 
agreed  to  perform  it  for  the  benefit  and  protection  of  all 
who  may  have  occasion  to  use  them,  and  that  for  failure 
in  the  discharge  of  'this  duty  the  municipal  corporation  is 
responsible  to  the  party  injured  thereby.  Bowen  v.  City 
of  Huntington,  35  W.  Va.  697. 

c.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant,  at  the  time  the  accident 
occurred,  was  required  by  its  charter  to  keep  the  sidewalks 
therein,  at  the  place  where  the  injury  was  sustained,  in 


MUNICIPAL  CORPORATIONS. 


good  and  sufficient  repair;  that  the  sidewalk  on  which 
the  injury  occurred  was  at  the  time  within  the  corporate 
limits  of  the  defendant;  that  the  sidewalk  at  the  place 

where  the  injury  was  sustained  was  out  of  repair  as 

/ 

alleged   in   the  declaration,  and   by   reason   thereof,   the 

plaintiff  was  injured,  then  the  plaintiff  is  entitled  to  re- 
recover.  Panish  v.  City  of  Huntinyton,  57  W.  Va.  286. 

d.  Same — Contributory  negligence. 

The  court  instructs  the  jury  that  our  statute  imposes 
an  absolute  liability  upon  the  defendant,  the  city  of 
— ,  for  any  injury  sustained  by  the  plaintiff  by  rea- 
son of  the  failure  of  the  defendant  to  keep  the  sidewalk 
in  the  declaration  mentioned  in  repair;  provided,  they 
are  satisfied  from  the  evidence  in  this  case  that  the  place 
of  the  alleged  injury  to  the  plaintiff  was  within  the  cor- 
porate limits  of  the  defendant,  and  that  such  sidewalk 
was,  at  the  time  and  place  where  the  alleged  injury  oc- 
curred, controlled  and  treated  by  the  defendant  as  a 
public  sidewalk,  and  opened  as  such;  and,  provided 
further,  that  the  plaintiff  was  not  guilty  of  any  negli- 
gence that  contributed  to  such  injury.  Phillips  v.  City  of 
Himtington,  35  W.  Va.  408. 

e.  Same — Contributory  negligence — Burden  of  proof. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  sidewalk  in  the  declaration  men- 
tioned was  a  public  sidewalk  within  the  corporate  limits 
of  the  defendant,  the  city  of  -  — ,  opened  up,  treated 
and  controlled  by  the  defendant  as  such  sidewalk;  and 
that  the  said  sidewalk  was  out  of  repair,  in  a  bad  con- 
dition and  unsafe  for  travel  at  the  time  of  the  plaintiff's 
alleged  injury,  and  that  by  reason  of  the  said  sidewalk 
being  so  out  of  repair  and  in  a  bad  and  unsafe  condition, 
the  plaintiff  was  injured,  then  the  plaintiff  is  entitled 
to  a  verdict  in  this  case,  unless  the  jury  are  satisfied  that 


MUNICIPAL  CORPORATIONS.  337 

the  plaintiff  was  guilty  of  contributory  negligence  on  his 
part,  and  that  such  negligence  was  the  proximate  cause 
but  not  the  remote  cause  of  his  injury,  and  the  jury  is 
further  instructed  that  the  burden  of  proof  of  establish- 
ing such  contributor}-  negligence  is  upon  the  defendant. 
Foley  v.  City  of  Huntington,  51  W.  Va.  398. 

f.     Care  and  precaution  required  of  municipal  corpora- 
tion. 

The  court  instructs  the  jury  that  the  defendant  is 
bound  to  use  reasonable  care  and  precaution  to  keep 
and  maintain  its  streets,  bridges  and  sidewalks  in  good 
and  sufficient  repair  to  render  them  reasonably  safe  for 
all  persons  in  the  exercise  of  ordinary  care  while  passing 
on  or  over  the  same,  and  if  the  jury  believe  from  the 
evidence  that  the  defendant  failed  to  use  reasonable  care 
and  precaution  to  keep  the  sidewalk  mentioned  in  the 
declaration  in  such  repair  and  that  the  injury  complain- 
ed of  resulted  from  that  cause  as  charged  in  the  declara- 
tion and  that  the  plaintiff  sustained  damages  thereby 
wjiile  exercising  such  degree  of  care  and  caution  as 
under  the  circumstances  might  reasonably  be  expected 
of  one  of  his  age  and  intelligence,  then  he  is  entitled  to 
recover  of  the  defendant  in  this  suit.  Parrish  v.  City  of 
Huntington,  57  W.  Ya.  286. 

g.  Temporary  obstructions  to  sidewalks  while  being 
graded — Necessity  for  protection  and  warning 
against  danger. 

The  court  instructs  the  jury  that  while  the  defendant, 
for  the  purpose  of  grading  the  sidewalk  in  the  declara- 
tion mentioned,  might  have  temporarily  obstructed  the 
passage  of  travel  over  the  same,  it  was  not  authorized 
to  leave  such  street  while  undergoing  such  grading  in 
such  condition  as  unnecessarily  to  expose  those  who 
might  pass  upon  it  to  danger,  and  that  in  such  condition 


;;;JS  MUNICIPAL  CORPORATIONS. 

such  sidewalk  should  not  have  been  left  without  protec- 
tion or  guard  or  beacon,  especially  at  night,  to  warn 
travelers  against  such  danger,  and  that  if  such  reason- 
able precautionary  measures  were  not  adopted  for  the 
safety  of  the  citizens  and  travelers  the  defendant  was 
culpable  and  liable  for  injuries,  if  an}',  to  the  plaintiff, 
without  any  fault  on  his  part,  just  as  if  the  defendant 
had  permitted  one  of  its  graded  streets  to  become  un- 
safe for  want  of  repairs.  Bowcn  \.  City  of  Huntingto-n, 
35  W.  Va.  697. 

h.  Same — Grading  and  paving — Requirements  of  corpor- 
ation while  improvements  being  made. 
The  court  instructs  the  jury  that  while  the  defendant 
had  the  right  to  temporarily  obstruct  the  passage  of 
travel  over  the  sidewalk  where  the  plaintiff's  injury  is  al- 
leged to  have  occurred,  for  the  purpose  of  grading  and 
paving  the  said  sidewalk,  it  was  not  authorized  to  leave 
said  sidewalk,  while  undergoing  such  grading  and  pav- 
ing, in  such  condition  as  unnecessarily  to  expose  those 
who  might  pass  upon  it  to  danger,  and  that  in  such  con- 
dition such  sidewalk  should  not  have  been  left  without 
protection  or  guard  or  beacon,  especially  at  night,  to 
warn  travelers  without  knowledge  of  its  condition 
against  such  danger,  and  that,  if  such  reasonable  and 
precautionary  measures  were  not  adopted  for  the  safety 
of  such  citizens  and  travelers,  the  defendant  was  culpable 
and  liable  for  injuries,  if  any,  to  the  plaintiff,  if,  without 
such  knowledge  and  without  any  fault  on  her  part  she 
was  injured  thereby,  tfnoddy  v.  City  of  Hun-tington.  37 
W.  Va.  113. 

i.    Improvements  made  by  property  owner  by  direction 
of  municipal   authority  —  Negligence  of   property 
owner  while  improving  sidewalks. 
The  court  instructs  the  jury  that  the  defendant  has 


MUNICIPAL  CORPORATIONS.  330 

the  right  to  improve  its  sidewalks,  which  improvement 
may  be  made  by  the  city  itself  or  by  the  abutting  lot- 
owner  at  the  command  of  the  city,  and  that  during  the 
progress  of  such  improvement  the  absolute  liability  im- 
posed on  it  by  section  53  of  chapter  43  of  the  Code  is 
suspended ;  and  they  are  instructed  that  if  they  find  from 
the  evidence  in  this  case  that  the  sidewalk  on  the  - 
side  of  -  -  street,  between  -  -  and  -  -  streets, 
was  being  improved,  at  the  time  and  place  the  injury 
complained  of  by  an  abutting  lot-owner,  at  the  command 
of  the  city,  and  that  such  injury  was  caused  by  the  con- 
dition in  which  the  work  on  such  improvement  had 
placed  said  sidewalk,  then  they  must  find  for  the  defend- 
ant, unless  they  further  find  that  the  work  of  improve- 
ment was  negligently  conducted  by  the  lot-owner,  and 
that  such  injury  was  caused  by  the  negligent  condition 
in  which  such  sidewalk  was  left  by  the  lot-owner  in  such 
work  of  improvement,  and  without  any  fault  on  the  part 
of  the  plaintiff.  Bowen  v.  City  of  Huntinyton,  35  W.  Va. 
696. 

j.    Liability  of  property  owner  for  injuries  caused  by 

an  excavation  in  a  public  street. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  after  the  excavation  of  the  cellar  de- 
scribed in  plaintiff's  declaration,  and  before  the  injuries 
complained  of  therein,  the  corporation  of  the  town  of 
— ,  by  an  ordinance  duly  passed,  widened  the  public 
street  in  front  of  said  cellar  so  as  to  embrace  some  six 
or  seven  feet  of  the  front  part  of  said  cellar,  to  which 
widening  the  defendant  consented  or  acquiesced,  and  if 
they  further  believe  from  the  evidence  that  the  plaintiff 
fell  into  that  portion  of  said  cellar,  so  embraced  in  the 
public  street  by  the  ordinance  aforesaid,  they  must  find 
for  the  defendant.  Beach  v.  Fankcriberger,  4  W.  Va. 
719. 


340  MUNICIPAL  CORPORATIONS. 

k.     Same — When  property  owner  prohibited  by  municipal 

authority  from  fencing  off  excavations. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  was  prohibited  by  an 
ordinance  of  the  corporation  of  -  — ,  in  force  before 
and  at  the  time  of  the  injuries  complained  of  in  plaintiff's 
declaration,  from  building  a  fence  in  front  of  the  cellar 
described  in  plaintiff's  declaration,  and  that  the  defend- 
ant assented  to  or  acquiesced  in  said  ordinance,  and  that 
the  plaintiff  fell  into  that  portion  of  said  cellar  which 
the  defendant  was  prohibited  from  fencing  as  aforesaid, 
the}r  must  find  for  the  defendant.  Beach  v.  Franken- 
berger,  4  W.  Va.  719. 

1.    Same — When  excavation  exists  at  the  time  of  pur- 
chase by  property  owner. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  cellar  or  hole  in  which  it  is  al- 
leged the  plaintiff  fell  and  was  injured,  was  made  by  the 
owner  of  the  lot,  -  — ,  over  which  he  built  a  - 
house  which  was  burned,  and  thereby  exposed  the  cellar 
or  hole,  in  -  -  18 — ,  and  so  continued  so  exposed  till 
his  death,  when  one  of  the  heirs  to  whom  it  was  allotted, 
in  18 — ,  sold  it  to  the  defendant,  in  the  same  condi- 
tion it  was  at  the  time  the  plaintiff  was  injured,  then 
the  plaintiff  cannot  recover  in  this  case.  Beach  v.  Frank- 
cnberger,  4  W.  Ya.  718. 

m.     Condition  of  street  and  sidewalk  at  time  of  injury — 

Condition  before  or  after  injury. 

The  court  instructs  the  jury  that  the  question  as  to 
whether  or  not  the  street  and  sidewalk  at  the  place 
mentioned  and  described  in  the  declaration  on  this  case 
was  in  a  reasonably  safe  condition  for  the  purpose  of 
persons  lawfully  passing  and  re-passing  over  and  along 
the  same,  both  by  day  and  night,  must  be  determined 


MUNICIPAL  CORPORATIONS.  341 

from  the  condition  said  sidewalk  was  in  at  the  time  the 
alleged  injury  complained  of  by  the  plaintiff  was  re- 
ceived by  him,  and  not  from  its  condition  before  or  after 
that  time.  Foley  v.  City  of  Euntington,  51  W.  Va.  400. 

n.  Proximate  cause  of  injury — Remote  cause  of  injury. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  injury  to  the  plaintiff  was  imme- 
diately caused  by  the  negligence  of  the  defendant  in  fail- 
ing to  keep  the  said  road  in  repair,  as  charged  in  the 
declaration,  and  that  the  plaintiff  was  guilty  of  some 
negligence,  which  may  have  been  the  remote  but  not  the 
proximate  cause  of  the  injury,  they  must  find  a  verdict 
for  the  plaintiff.  Sheff  v.  City  of  Huntington,  16  W.  Va. 
320. 

o.  What  necessary  for  person  injured  to  allege  and  prove. 
The  court  instructs  the  jury  that  the  plaintiff  need 
only  allege  and  prove  the  existence  of  the  defect  or  want 
of  repair  in  the  sidewalk  in  the  declaration  mentioned, 
and  that  he  was  injured  thereby  without  any  fault  of 
his  own,  and  that  the  sidewalk  at  the  place  where  plain- 
tiff's injury  is  alleged  to  have  occurred  was  under  the 
control  of  the  defendant  within  its  corporate  limits,  and 
was  by  the  defendant  treated  and  assumed  to  be  kept  in 
repair  as  a  public  sidewalk.  Bowen  v.  City  of  Hunting- 
ton,  35  W.  Va.  697. 

p.    Previous  knowledge  of  person  injured  of  defects  in 

public  highway — Want  of  ordinary  care. 
The  court  instructs  the  jury  that  previous  knowledge 
of  a  defect  in  or  of  the  dangerous  condition  of  a  street, 
road  or  highway  by  reason  of  such  defect  or  dangerous 
condition  is  evidence  tending  to  show  that  such  person 
was  not  using  ordinary  care,  and  is  to  be  considered 
with  the  other  evidence  in  the  case  in  determining 


;t4l_>  MUNICIPAL  CORPORATIONS. 

whether  the  plaintiff  was  in  the  exercise  of  ordinary  care 
at  the  time  of  the  accident.  Wilson  v.  City  of  Wheeling, 
1!»  W.  Va.  329. 

2.       CHANGING   GRADE   OF    STREETS. 

a.  Injury  to  property  without  owner's  consent. 

b.  Authority  for  establishing  grade  of  streets. 

c.  Establishment  of  grade  prior  to  purchase  of  prop- 

erty. 

d.  Building  below  established  grade. 

e.  Raising  property  to  established  grade. 

f.  Market  value  of  property. 

g.  Same. 

h.  When  not  part  of  property  taken — Value  of  prop- 
erty before  and  after  inprovements  made. 

i.  Enhancement  in  value  of  property  by  grading  and 
paving. 

j.     Same — Off-set  of  damages  by  accrued  benefits. 

a.  Liability  for  injury  to  property  without  owner's  con- 

sent. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  city  of  -  -  has  injured  the  prop- 
erty of  the  plaintiff,  without  her  consent  having  been 
first  obtained,  that  it  is  your  duty  to  ascertain  and  de- 
termine the  extent  of  said  injury  and  by  your  verdict 
compensate  her  for  the  said  injury.  Blair  v.  City  of 
Charleston,  43  W.  Va.  73. 

b.  Municipal  authority  for  establishing  grade  of  streets. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  city  of  -  -  is  granted  by  the 
Legislature  of  West  Virginia  power  to  control  the  grades 
of  streets  and  the  building  of  houses  within  its  corpor- 
ate limits,  and  under  such  authority  established  a  grade 


MUNICIPAL  CORPORATIONS.  343 

for  -  -  street  by  ordinance  duly  enacted  and  recorded 
and  subsequently  granted  to  plaintiff  a  permit  to  build 
on  said  street,  and  plaintiff  subsequently  built  on  said 
street  below  such  established  grade  line,  then  the  plain- 
tiff can  not  recover  for  damages  to  such  house  against 
the  defendant  by  reason  of  the  filling  and  paving  of  said 
street  to  such  grade  theretofore  established.  Blair  v.  City 
of  Charleston.  43  W.  Va.  73. 

c.  Establishment  of  grade  line  for  street  prior  to  pur- 

chase of  property  by  person  alleging  injury — Own- 
er's constructive  knowledge  of  established  grade. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  prior  to  the  plaintiff's  ownership  of  the 
property  on  -  -  street,  the  city  of  -  — ,  had  by 
properly  enacted  ordinance  adopted  a  grade  line  for  said 
street  and  that  plaintiff  had  constructive  knowledge  of 
this  fact,  both  at  the  time  of  her  purchase  of  said  prop- 
erty and  at  the  time  of  the  construction  of  her  houses 
thereon,  and  the  said  city  afterwards  filled  said  street 
and  paved  same  to  a  grade  no  higher  than  the  grade  there- 
tofore established,  then  the  plaintiff  can  not  recover  for 
damages  alleged  to  be  suffered  by  reason  of  said  fill  and 
paving  of  said  street.  Blair  v.  City  of  Charleston,  43  W. 
Va.  73. 

d.  Same — Effect  of  building  below  established  grade. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  city  of  -  -  had  established  a 
grade  line  for  -  -  street  and  that  subsequent  to  said 
establishment,  the  plaintiff  acquired  lots  abutting  on 
said  street  and  voluntarily  built  houses  below  the  plane 
of  said  grade  line,  and  the  said  city  afterwards  filled 
said  street  to  said  grade  and  paved  same,  then  the  plain- 
tiff can  not  recover  for  damage  to  said  buildings  result- 


344  MUNICIPAL  CORPORATIONS. 

ing  from  said  fill  and  paving.    Blair  v.  City  of  Charles- 
ton, 43  W.  Va.  73. 

e.  Effect  of  raising  building  to  grade  lower  than  estab- 

lished grade. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  voluntarily  raised  her 
dwelling  house  without  ascertaining  the  established 
grade  of  -  -  street,  to  a  grade  lower  than  is  neces- 
sary to  render  the  house  convenient  for  ingress  and 
egress,  and  thereby  occasioned  the  necessity  for  addi- 
tional and  unnecessary  expense  in  raising  said  dwell- 
ing house  to  a  proper  grade,  then  such  expense  caused  by 
such  mistake  in  the  raising  of  said  dwelling  hous*;  can 
not  be  taken  into  consideration  by  the  jury  in  arviviug 
at  their  verdict.  Blair  v.  City  of  Charleston,  43  W.  Va. 
73. 

f .  Decrease  of  market  value  of  property  caused  by  grad- 

ing and  paving  of  street. 

The  court  instructs  the  jury  that  if  they  believe-  from 
the  evidence  that   the   fair   market   value   of   plaintiff's 
property   was   not   decreased   by   the   paving  of 
street    by    the    city    of  •    complained    of    in    the 

declaration,  then  they  shall  find  for  the  defendant.   Blair 
v.  City  of  Charleston,  43  W.  Va.  73. 

g.  Same. 

The  court  instructs  the  jury  that  any  recovery  of  dam- 
ages against  a  municipal  corporation  must  be  based 
upon  pecuniary  loss  to  the  person  damaged,  anl  unless 
they  believe  from  the  evidence  that  the  fair  market  val- 
ue of  plaintiff's  property  was  decreased  by  the  filling 
and  paving  of  -  -  street,  then  they  must  find  for  the 
defendant.  Blair  v.  City  of  Charleston,  43  W.  Va.  73. 


MUNICIPAL  CORPORATIONS.  345 

h.  Same — When  no  part  of  property  taken — Value  of 
property  before  and  after  improvements  made. 

The  court  instructs  the  jury  that  when  an  action  is 
brought  to  recover  damages  where  no  part  of  the  plain- 
tiff's property  has  been  taken,  but  simply  damaged  by  a 
public  improvement,  damages  can  not  be  had  unless  the 
property  claimed  to  be  damaged  has  been  depreciated  in 
value  by  the  construction  of  the  public  improvement. 

In  other  words,  if  the  fair  market  value  of  the  prop- 
erty was  as  much  after  the  construction  of  the  improve- 
ment as  it  was  immediately  before  the  improvement  was 
made,  no  damage  can  be  sustained,  and  no  recovery  can 
be  had. 

Therefore,  in  this  case,  if  the  jury  believe  from  the 
evidence  that  the  fair  market  value  of  the  plaintiff's 
property  was  as  much  immediately  after  the  filling  and 
paving  of  -  -  street  as  it  was  immediately  before, 
without  taking  into  consideration  any  improvement 
plaintiff  made  while  said  street  improvement  was  in 
progress  then  she  has  sustained  no  damages  which  can 
be  the  subject  of  a  recovery  in  this  suit,  and  they  shall 
find  for  the  defendant.  Blair  \.  City  of  Charleston,  43 
W.  Ya.  73. 

i.    Enhancement  in  value  of  property  by  grading  and 

paving. 

The  court  instructs  the  jury  that  in  no  view  of  the 
case  can  they  award  to  the  plaintiff  damages  to  a  greater 
sum  than  is  sufficient  to  reimburse  her  for  the  decrease, 
if  any,  in  the  market  value  of  her  property  caused  by 
the  filling  and  paving  of  -  -  street;  and  if  the  jury 
believe  from  the  evidence  that  the  changes  in  the  prop- 
erty claimed  by  the  plaintiff  to  be  necessary  to  be  made 
and  for  which  she  seeks  to  recover  in  this  action  will  have 
the  effect  to  enhance  the  value  of  said  property  beyond 
what  it  would  have  been  in  case  said  improvement  of  the 


34(J  MUNICIPAL  CORPORATIONS. 

street  had  not  been  made,  then  they  can  not  allow  in 
their  verdict  any  sum  for  changes  which  would  so  en- 
hance said  value.  Blair  v.  City  of  Charleston,  43  W. 
Va.  73. 

j.     Same — Off-set  of  damages  by  accrued  benefits. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  benefits  have  accrued  to  the  plaintiff's 
property  by  reason  of  the  filling  and  paving  of  - 
street  which  counterbalance  an}'  damage  which  may 
have  been  done  her  property  by  reason  of  such  filling 
and  grading  then  they  should  find  for  the  defendant. 
Blair  v.  City  of  Charleston,  43  W.  Va.  73. 

3.     SURFACE   WATERS — DRAINS  OR  SEWERAGE. 

a.  Liability  of  casting  surface  water  upon  an  indi- 

vidual. 

b.  Drains  or  sewerage  for  carrying  away  water  from 

cellars. 

c.  Same — Raising  grade  of  streets. 

d.  Same — Injuries  resulting  from  other  causes. 

a.  Liability  of  a  municipal  corporation  for  casting  sur- 

face water  upon  the  property  of  an  individual. 
The  court  instructs  the  jury  that  in  disposing  of  sur- 
face water,  a  municipal  corporation  has  no  right,  by 
any  means  whatever,  to  collect  and  cast  the  same  upon 
the  property  of  an  individual.  Clay-  v.  City  of  St. 
Allans,  43  W.  Va.  546. 

b.  Drains  or  sewerage  for  carrying  away  water  from 

cellars. 

The  court  instructs  the  jury  that  the  law  does  not 
require  the  city  of  -         -  to  furnish  a  drain  or  sewer  to 


MUNICIPAL  CORPORATIONS.  347 

carry  away  water  from  the  cellar  on  the  premises  in  the 
plaintiff's  declaration  described,  or  away  from  said 
premises.  Jordan  v..  City  of  Bcmcood,  42  TV.  Va.  322. 

c.  Same — Raising  grade  of  street. 

The  court  instructs  the  jury  that  the  fact  that  the  city 
of  -  -  raised  the  grade  of  -  -  street  and  of  alley 
— ,  so  as  to  prevent  water  flowing  from  the  cellar  on 
.the  premises  in  the  plaintiff's  declaration  described, 
or  away  from  said  premises,  upon  said  street  or  said 
alley,  will  not,  of  itself,  entitle  the  plaintiff  to  recover 
damages  in  this  action.  Jordan  v.  City  of  Ben-wood,  42 
W.  Va.  322. 

d.  Same — Injuries  resulting  from  other  causes. 

The  court  instructs  the  jury  that  if  they  believe  from 
the    evidence    that    the    city    of  — ,    since  — , 

— ,  and  before  the  bringing  of  this  suit,  has  dam- 
aged the  premises  described  in  the  plaintiff's  declaration 
otherwise  than  by  preventing  the  water  from  flowing 
therefrom  upon  -  -  street  or  upon  alley  -  — ,  their 
verdict  must  be  for  the  defendant.  Jordan  v.  City  of 
Benwood,  42  W.  Va.  322. 


348  NATURAL  GAS. 

CHAPTER  52. 
NATURAL  GAS/ 

a.  Gas  furnished  for  domestic  purposes — Dangerous 

substances — Care  and  skill  required  in  its  opera- 
tions. 

b.  Same. 

c.  Same — Amount  of  pressure — Requirements   as  to. 

d.  Same. 

e.  Defective  fittings  and   appliances  put  in  by   con- 

sumer— Increased   pressure — Leakage   or  escape 
of  gas — Explosions. 

f.  Same. 

g.  Same. 

h.     Same  —  Obligation   of  consumer  to   keep  fixtures 
and  appliances  in  proper  condition. 

i.     Inferences  as  to  increased  pressure, 
j.     Contributory  negligence, 
k.     Same — Burden  of  proof. 

1.     Same — Mutual  negligence — Burden  of  proof. 

a.  Gas  furnished  for  domestic  purposes — Dangerous  sub- 
stance— Care  and  skill  required  in  its  operations. 
The  court  instructs  the  jury  that  a  corporation  or  per- 
son furnishing  natural  gas  to  the  stoves,  heaters,  burners, 
pipes,  lines  of  pipe,  machinery,  or  apparatus  of  another, 
to  be  used  for  the  purpose  of  domestic  heat  and  fuel  in  a 
dwelling  house,  is  bound  to  exercise  such  care,  skill,  and 
diligence  in  all  its  operations  as  is  called  for  by  the 
delicacy,  difficulty  and  dangerousness  of  the  nature  of  its 
business,  in  order  that  injury  may  not  be  occasioned  to 
others;  that  is  to  say,  if  the  danger,  delicacy,  and  diffi- 
culty is  extraordinarily  great,  extraordinary  skill  and 
diligence  is  required.  Barrickman  v.  Oil  Co.,  45  W.  Ya. 
643. 


NATURAL  GAS.  349 

b.  Same. 

The  court  instructs  the  jury  that  it  was  the  duty  of 
the  defendant,  as  it  is  of  all  incorporated  companies 
which  are  invested  for  their  own  profit  and  advantage 
with  the  great  and  important  privilege  of  supplying  a 
community  with  natural  gas  for  private  habitation,  to 
be  used  as  fuel  and  domestic  heating,  to  exercise  such 
care,  diligence  and  skill  in  the  conduct  of  its  business  as 
is  proportioned  to  the  danger  or  risk  to  the  property, 
of  others.  Barrickman  v.  Oil  Co.,  45  W.  Va.  644. 

c.  Same — Requirements  as  to  amount  of  pressure. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  natural  gas  is  a  very  dangerous,  vola- 
tile, and  explosive  substance,  then  the  person  or  corpora- 
tion which  furnishes  it  for  valuable  consideration  to  the 
stoves,  heaters,  burners,  pipes,  lines  of  pipe,  machinery 
or  apparatus  of  another,  for  the  purpose  of  fuel  for  do- 
mestic heat,'  must  use  such  care,  skill,  attention  and  dili- 
gence in  order  that  no  greater  amount  of  pressure  thereof 
shall  be  so  furnished  than  is  proper  to  be  furnished,  and 
in  order  to  prevent  injury  to  the  person  or  property  of 
others,  as  is  proportioned  to  the  danger  of  such  sub- 
stances. Barrickman  v.  Oil  Co.,  45  W.  Va.  644. 

d.  Same — Machinery,  appliances  and  work  required. 
The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  natural  gas  is  an  extremely  dangerous 
substance,  and  that  the  defendant,  at  the  time  of  the 
burning  alleged  in  the  declaration,  was  furnishing,  for  a 
valuable  consideration,  such  gas  to  the  heaters,  burners, 
stoves,  grates,  pipes,  lines  of  pipe,  machinery  or  appara- 
tus of  the  plaintiff,  for  the  purpose  of  using  such  gas 
as  fuel  for  domestic  heat  in  and  about  the  dwelling  house 
mentioned  in  the  declaration  at  the  time  of  such  burn- 


;;;,()  NATURAL  GAS. 

ing,  then  it  was  the  duty  of  the  defendant,  under  the  law 
to  use  such  care,  diligence  and  skill,  both  in  providing 
proper  machinery,  regulators  and  apparatus,  work,  labor, 
and  attention,  in  order  to  control  such  gas,  and  the 
amount  of  pressure  furnished  to  such  dwelling  house,  as 
is  in  due  proportion  to  the  nature  of  the  substance  used. 
Ban-id; in <in  v.  Oil  Co..  45  W.  Va.  644. 

e.  Defective  fittings  and  appliances  furnished  and  put 

in  by  consumer — Leakage  or  escape  of  gas — In- 
creased pressure — Destruction  of  property  result- 
ing from  gas  explosion. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  house  of  the  plaintiff,  described 
in  the  declaration,  was  by  the  defendant  furnished  and 
supplied  with  gas  on  the  application  of  the  plaintiff's 
tenant,  and  that  such  gas  was  conducted  from  the  de- 
fendant's main  or  gas  line  to  said  house  by  means  of  pipe, 
valves,  fittings  and  appliances  laid  and  furnished  by 
said  tenant,  with  the  consent  of  the  plaintiff,  and  that 
pursuant  to  a  promise  made  by  said  tenant  that  he.  said 
tenant,  would  keep  and  maintain  said  pipe,  valves,  fit- 
tings and  appliances  necessary  and  proper  for  the  safe 
use  and  consumption  of  said  gas  in  good  order  and  re- 
pair, and  that  the  fire  which  consumed  the  plaintiff's 
house  was  caused  by  an  explosion  of  the  gas  in  said 
house,  or  by  any  other  means  resulting  from  the  escape 
or  leakage  of  said  gas,  or  the  negligent  manner  of  tak- 
ing care  of  or  using  the  same  after  leaving  the  defendant's 
main,  the  plaintiff  cannot  recover,  and  the  jury  should 
find  for  the  defendant.  Ban-icl-inan  v.  Oil  Co.,  45  W. 
Va.  650. 

f.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 


NATURAL  GAS.  351 

the  evidence  that  the  plaintiff's  tenant  was  guilty  of 
negligence  in  the  placing  or  maintaining  on  said  leased 
premises  the  pipes,  valves,  fittings  and  appliances  which 
made  the  connection  to  conduct  said  gas  from  defend- 
ant's main  into  the  house  on  said  leased  premises  in  an 
unsafe  condition,  and  in  not  keeping  and  maintaining 
said  pipe,  valves,  fittings  and  appliances  in  good  order 
and  repair,  and  in  proper  and  safe  condition  for  the  use 
and  consumption  of  the  gas,  and  that  by  reason  of  which 
unsafe  condition  of  said  pipe,  valves,  fittings  and  appli- 
ances said  house  was  set  on  fire  and  destroyed,  by  means 
of  an  explosion  of  said  gas,  or  by  means  of  an  increased 
heat  or  the  escape  of  gas,  occasioned  in  whole  or  in 
part,  by  such  unsafe  defective  pipes,  valves,  fittings  and 
appliances,  the  negligence  of  the  tenant  should  prevent 
the  plaintiff  from  recovering  in  this  action,  and  the  jury 
should  find  for  the  defendant.  Barrickman  v.  Oil  Co., 
45  W.  Va.  649. 

g.    Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  at  the  time  of  the  fire  which  destroyed 
plaintiff's  house  there  was  an  unusual  pressure  of  gas, 
as  described  in  the  declaration,  and  that  said  gas,  with 
unusual  force,  came  into  the  pipe  and  appliances  and  to 
the  burners,  valves  and  fittings  on  the  plaintiff's  premi- 
ses, and  thus  increased  the  quantity  of  gas  where  the 
same  was  to  be  consumed,  yet  the  plaintiff  cannot  recover 
if  the  jury  further  believe  from  the  evidence  that  the 
pipe,  valves,  fittings  and  appliances  placed  on  the  plain- 
tiff's premises  for  the  purpose  of  conducting  said  gas 
from  the  defendant's  line  to  said  house  were  not  in  good 
order  and  repair,  and  were  at  the  time  of  the  fire  unsafe 
for  the  use  and  consumption  of  said  gas,  and  that  by 
reason  thereof,  the  said  gas  escaped,  or  the  quantity  there- 
of being  burned  was  increased,  and  caused  the  destruc- 


NATURAL  GAS. 


tion  of  snid  house.     Barrickman  v.  Oil  Co.,  45  W.  Va. 
649. 

h.     Same — Obligation  of  consumer  to  keep  fixtures  and 

appliances  in  proper  condition. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  house  of  the  plaintiff  described  in 
the  declaration  was  by  the  defendant  furnished  and  sup- 
plied with  gas  upon  the  application  of  the  plaintiff's 
tenant,  and  that  such  gas  was  conducted  from  the  de- 
fendant's main  or  gas  line  to  the  said  house  by  means  of 
pipe,  valves  fittings  and  appliances  laid  and  furnished 
by  the  said  tenant  with  the  consent  of  the  plaintiff,  and 
that  such  gas  was  furnished  upon  the  promise  of  the  said 
tenant  that  he  would  keep  and  maintain  said  pipe,  valves, 
fittings  and  appliances  in  good  order  and  repair,  the  jury 
is  instructed  that  it  was  the  duty  of  the  plaintiff,  or  his 
tenant,  to  see  that  the  pipe,  valves,  fittings  and  applian- 
ces and  fixtures  on  the  premises  of  the  plaintiff  described 
in  the  declaration,  and  which  conducted  the  gas  from  the 
defendant's  gas  line  to  the  premises  of  the  plaintiff,  were 
kopt  in  good  order  and  repair,  and  in  proper  and  safe 
condition  for  the  use  and  consumption  of  gas  on  the 
premises  and  in  the  house  of  the  plaintiff;  and  if  the 
jury  believe  from  the  evidence  that  such  pipes,  valves, 
fittings  and  appliances  which  made  the  connections  neces- 
sary to  conduct  said  gas  from  the  defendant's  gas  line 
to  said  premises  were  not,  at  the  time  of  the  burning  of 
the  plaintiff's  house,  in  good  order  and  repair  and  safe 
condition  for  the  consumption  of  gas,  and  that  the  fire 
which  destroyed  the  plaintiff's  house  was  caused  from 
gas,  and  that  such  fire  was  caused  by  escape  or  leakage  of 
such  gas,  or  the  negligent  manner  of  taking  care  of  or 
using  the  same  after  leaving  the  defendant's  main  or 
gas  line,  the  plaintiff  can  not  recover,  even  if  the  defend- 


NATURAL  GAS.  353 

an>t   was   negligent  as  claimed   by   the  plaintiff   in   his 
declaration.    Barrickman  v.  Oil  Co.,  45  W.  Va.  (J53. 

i.    Inferences  as  to  increased  pressure. 

The  court  instructs  the  jury  that  the  mere  fact  that 
the  house  of  the  plaintiff  was  set  on  fire  is  not  sufficient  to 
justify  the  inference  that  an  increased  pressure  of  gas 
caused  the  fire.  Barrickman  v.  Oil  Co.,  45  W.  Va.  648. 

j.     Contributory  negligence. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  at  the  time  of  the  fire  which  destroyed 
plaintiff's  house,  the  plaintiff's  tenant  was  guilty  of  neg- 
ligence in  not  keeping  and  maintaining  pipes,  valves,  fix- 
tures and  appliances  placed  on  the  premises  of  the  said 
plaintiff  for  the  purpose  of  conducting  the  said  gas  from 
the  defendant's  main  into  said  dwelling  house  on  said 
premises  in  good  order  and  repair,  and  if  the  said  neg- 
ligence of  the  said  tenant,  in  whole  or  in  part,  caused 
or  occasioned  the  injury  complained  of  and  described  in 
the  declaration  in  this  cause,  the  plaintiff  can  not  re- 
cover, and  the  jury  should  find  for  the  defendant.  Bar- 
rickman v.  Oil  Co.,  45  W.  Va.  649. 

k.    Same — Burden  of  proof. 

The  court  instructs  the  jury  that  the  burden  of  prov- 
ing contributory  negligence  rests  with  the  defendant, 
but  the  jury  may  look  to  all  the  evidence  offered  by  both 
parties  to  determine  the  question  of  contributory  neg- 
ligence. Barrickman  v.  Oil  Co.,  45  W.  Va.  646. 

1.    Same — Mutual  negligence — Burden  of  proof. 

The  court  instructs  the  jury  that  in  this  case  negli- 
gence is  the  ground  of  the  plaintiff's  action,  and  that  it 
therefore  rests  upon  the  plaintiff  to  trace  the  fault  of 
his  injury  to  the  defendant,  by  proving  negligence  upon 


354  NEGOTIABLE  INSTRUMENTS. 

the  part  of  the  defendant,  and  for  this  purpose  he  must 
show  the  circumstances  under  which  the  injury  oc- 
curred; and  if  from  these  circumstances  so  proven  by 
the  plaintiff,  and  from  all  the  evidence,  including  the 
evidence  of  the  defendant,  it  appears  that  the  fault  of 
the  injury  was  mutual,  or  in  other  words,  that  the  neg- 
ligence is  fairly  imputable  to  the  plaintiff  or  his  tenant, 
the  plaintiff  cannot  recover.  Barrickman  v.  Oil  Co.,  45 
\V.  Va.  651. 


CHAPTER  53. 

NEGOTIABLE  INSTRUMENTS. 

a.  Joint  promissors — When  party  liable  as. 

b.  Same  —  Right    to    recover    proportionate    part    of 

amount  paid. 

c.  Whether  liability  that  of  indorser  or  joint  maker. 

d.  Same — Burden  of  proof. 

e.  Same — As  to  indorser. 

a.    Joint  promissor — When  party  liable  as. 

The  court  instructs  the  jury  that  when  -  -  put  his 
name  on  the  back  of  the  note  sued  on  in  this  case  he 
thereby  intended  to  become  bound  for  its  payment  in 
some  form;  and  if  the  jury  believe  from  the  evidence  that 
said  note  was  delivered  to  the  plaintiff  before  maturity, 
in  its  present  form,  in  the  absence  of  proof  of  an  under- 
standing, known  to  the  plaintiff  or  his  agent,  that  said 
-  was  to  be  bound  in  any  particular  manner,  then 
the  plaintiff  has  the  right  to  charge  him  as  joint  promisor 
or  maker  along  with  the  other  parties  whose  names  ap- 
pear upon  the  said  note,  and  they  must  find  for  the  plain- 
tiff. Grocery  Co.  v.  Watkins,  41  W.  Va.  792. 


NEGOTIABLE   INSTRUMENTS.  355 

b.  Right  of  one  joint  promissor  to  recover  from  another 

proportionate  part  of  amount  paid  on  joint  note. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff,  -          -  and   defendant, 
— ,  jointly  and  severally  agreed  to  pay  to  the  — 

-  bank  the  remaining  balance  of  the  original 

debt,  and  that  the  same  was  afterwards  paid  by  plaintiff, 
then  plaintiff  has  the  right  to  recover  from  the  defendant 
one-half  of  such  amount  paid  by  him  by  reason  of  such 
joint  and  several  obligation.  Bartlett  v.  Armstrong,  57 
W.  Va. . 

c.  Whether  liability  that  of  indorser  or  joint  maker — 

Consideration  of  contents  of  notice  of  protest. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  indorsed  his  name  on  the 
back  of  the  note  sued  on  as  indorser,  and  not  as  joint 
maker  thereof,  and  that  at  the  time  said  note  wius  de- 
livered to  the  plaintiff  he  knew  the  said  defend-in',  in- 
dorsed the  said  note  as  an  indorser  thereon,  and  nr>r  as 
a  joint  promisor,  and  that  the  said  plaintiff  had  said 
note  regularly  protested,  and  had  notice  sent  to  t':(  de- 
fendant, as  indorser  of  such  protest,  then  the  jury  may 
consider  said  facts  along  with  the  other  evidence  in  the 
case,  and  if  they  believe  from  the  evidence  that  the 
said  defendant  was  an  indorser  on  the  note  sued  on,  and 
not  a  joint  maker  or  promisor,  they  should  find  for  the 
defendant.  Grocery  Co.  v.  Watkins,  41  W.  Va.  793. 

d.  Same — Burden  of  proof. 

The  court  instructs  the  jury  that  the  burden  of  proof 
is  upon  the  defendant  to  prove  that  when  he  put  his 
name  on  the  back  of  the  note  in  suit,  before  its  delivery 
to  the  plaintiff,  he  intended  to  become  bound  only  as 
guarantor  or  indorser  or  otherwise  than  as  joint 


356  NUISANCE. 

promisor  or  maker  along  with  the  other  parties  to  said 
note,  and  that  he  must  show  that  such  understanding 
was  had  with  the  plaintiff.  Grocery  Co.  v.  Watkim,  41 
W.  Va.  792. 

e.    Notice  of  protest  not  necessary  to  be  given  to  a  joint 

promissor. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  is  bound  as  joint 
promisor  or  maker  of  the  note  sued  upon,  then  no  notice 
of  protest  was  necessary  to  be  given  to  the  defendant. 
Grocery  Co.  v.  Watkins,  41  W.  Va.  792. 


CHAPTER  54. 
NUISANCE. 

a.  House  kept  for  entertaining  prostitutes — Improprie- 
ties permitted  in  house — When  liquor  license  fails 
to  excuse  keeper  of  disorderly  house. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  defend- 
ant kept  a  room  in  her  hotel  near  the  bar,  for  the  pur- 
pose and  with  the  intent  of  bringing  together  and  en- 
tertaining prostitutes  and  men  desirous  of  their  com- 
pany, and  that  such  persons  were  in  the  habit  of  as- 
sembling there  to  drink  and  play  cards  together,  then 
the  jury  should  find  the  defendant  guilty,  even  though 
they  may  believe  that  the  house  was  kept  quietly  and  no 
conspicuous  improprieties  were  permitted  inside.  And 
the  fact  that  she  had  a  hotel  or  liquor  license  cannot 
excuse  the  defendant,  provided  the  jury  find  the  house 
disorderly.  State  v.  Mcgahan,  48  W.  Va.  442. 


OIL  AND  GAS  LEASES— OIL  WELLS.  357 

CHAPTER  55. 
OIL  AND  GAS  LEASES. 

a.    Machinery  and  fixtures — Reasonable  time  given  lessee 

to  remove  same  from  leased  premises. 
The  court  instructs  the  jury  that  the  plaintiff's  were 
not  deprived  of  the  right  to  remove  the  property  demanded 
in  the  declaration,  under  the  evidence  offered  to  the  jury,, 
if,  from  such  evidence,  the  jury  shall  believe  such  property 
was  placed  upon  the  leased  premises  for  the  purpose  of 
drilling  or  operating  for  oil  and  gas,  by  reason  of  the  fact 

that  a  decree  was  entered  by  the  circuit  court  of 

county,  on  or  about  the day  of , ,  in 

an  equity  suit  brought  by  the  defendant  against  the 
plaintiff  for  such  purpose,  and  that  the  plaintiff  would 
be  entitled  to  a  reasonable  time  after  the  termination  of 
the  suit  in  equity  to  remove  said  property  from  the  leased 
premises.  Gartland  v.  Hickman,  56  W.  Va.  82. 


CHAPTER  56. 
OIL  WELLS. 

a.  Abandonment  of  work  on  wells. 

b.  Same — Agency — Acts,  declarations  and  conduct  of. 

a.    Abandonment  of  work  on  wells — Hired  tools — Duty 

of  party  renting  to  return  to  owner. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the   defendant  had   hired   the   plain- 
tiff's tools  and  had  quit  work  on  the  well  in  question, 


358  OIL  WELLS. 

and  had  not  purchased  said  tools,  it  was  the  duty  of  the 
defendant  to  immediately  return  the  tools  to  the  plain- 
tiff, and  so  notify  the  plaintiff,  and  in  case  he  failed  to 
do  so,  then,  in  that  event  the  jury  should  find  for  the 
plaintiff.  Coulter  v.  Blatchlcy,  51  W.  Va.  165. 

b.    Same — Agency — Acts,   declarations   and   conduct  of 

agent. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  -  was  the  agent  of  the  defendant 
in  charge  at  the  well  in  controversy,  and  that  said  agent 
had  placed  -  -  in  charge  of  said  well  temporarily  in 
his  absence,  and  never  returned  to  assume  the  manage- 
ment of  said  well,  and  never  discharged  -  -  from 
the  managing  and  looking  after  said  well,  and  that  said 
-  was  never  discharged  by  the  defendant  from  said 
management,  and  that  the  defendant  ratified  the  act  of 
the  said  agent,  then,  in  that  event,  the  acts,  declarations 
and  conduct  of  said  -  -  in  managing  and  controlling 
said  well  would  bind  the  defendant,  and  the  jury  should 
find  for  the  plaintiff.  Coulter  v.  Blatchley,  51  W.  Va, 
166. 


PARENT  AND  CHILD.  359 

CHAPTER  57. 
PARENT  AND  CHILD. 

1.  SALE  OP  INTOXICATING  LIQUORS  TO   MINORS. 

2.  SEDUCTION   OF    MINORS. 

1.      SALE  OP  INTOXICATING  LIQUORS  TO   MINORS. 

a.  Right  of  action  by  mother  of  minor  son. 

b.  Loss  of  means  of  support. 

c.  Unlawful   sales — Liquor   dealer's   knowledge    of. 

d.  Exemplary  damages. 

e.  Allegations  and  proof. 

a.  Right  of  action  against  liquor  dealer  by  mother  oS 

minor  son. 

The  court  instructs  the  jury  that  if  the  mother  of  a 
minor  son  has  been  injured  in  her  means  of  support  by 
the  intoxication  of  such  son,  caused  in  whole  or  in  part 
by  intoxicating  liquors  unlawfully  sold  to  him  by  a 
liquor  dealer,  the  mother  has  a  right  of  action  against 
the  person  making  such  sale,  although  at  the  time  of  such 
injury  she  may  be  living  with  a  husband,  on  whom  she 
depends  in  part  for  her  support.  McMaster  v.  Dyer,  44 
W.  Va.  645. 

b.  Same — Loss  of  means  of  support. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  preponderance  of  the  evidence  that  the  defendant 
has  injured  the  plaintiff,  in  person  or  in  means  of  sup- 
port, in  manner  and  form  as  alleged  in  the  declaration, 

by  unlawfully  selling  to  her  minor  son, , 

intoxicating  liquors,  as  alleged,  and  that  his  intoxication 
was  caused,  in  whole  or  in  part,  by  intoxicating  liquors 


360  PARENT  AND  CHILD. 

unlawfully  sold  to  him  by  the  defendant,  as  in  the  decla- 
ration alleged,  and  that  such  injury  was  the  result  of 
such  intoxication,  the  jury  should  find  for  the  plaintiff. 
McMaster  v.  Dyer,  44  W.  Va.  646. 

c.  Concerning  liquor  dealer's  knowledge   of  unlawful 

sales. 

The  court  instructs  the  jury  that  a  sale  of  intoxicating 
liquors  by  a  liquor  dealer  to  a  minor  is  unlawful,  if  at 
the  time  of  such  sale  the  liquor  dealer  knows,  or  has 
reason  to  believe  that  the  purchaser  is  a  minor  Mo- 
Master  v.  Dyer,  44  W.  Va.  646. 

d.  Exemplary  damages — Definition  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  preponderance  of  the  evidence  that  the  plaintiff  is 
the  mother  of  -  — ,  that  he  is  a  minor,  and 

that  the  defendant,  by  himself  or  by  his  clerk,  or  any 
one  acting  under  his  authority,  unlawfully  sold  to  the 
i;aid  -  -  on  the  -  -  day  of  -  — ,  18 — ,  at 

the  defendant's  place  of  business,  at  -  — ,  in  this  coun- 
ty, intoxicating  liquors,  and  that  the  said  intoxicating 
liquors,  in  whole  or  in  part,  caused  the  intoxication  of 
the  said  -  — ,  and  that  by  reason  of  such  in- 

toxication the  plaintiff  was  injured,  in  person  or  in 
means  of  support,  in  manner  and  form  as  in  the  decla- 
ration alleged,  then  the  jury  should  find  for  the  plain- 
tiff, and  assess  in  her  favor  such  damages  as  the  jury 
should  find  from  the  evidence  she  has  sustained  by  rea- 
son of  such  intoxication,  and  also  exemplary  damages, 
but  not  exceeding  altogether  -  -  dollars.  By  'exem- 
plary damages'  is  meant  such  damages  as  should  be  in- 
flicted upon  a  wrongdoer  as  a  warning  to  him  and  others 
to  prevent  a  repetition  or  commission  of  similar  wrongs. 
McMaster  v.  Dyer,  44  W.  Va.  646. 


PARENT  AND  CHILD.  361 

e.    Allegations  and  proof. 

The  court  instructs  the  jury  that  if  they  believe  from 
a  preponderance  of  the  evidence  that  the  allegations  of 
the  plaintiff's  declaration  have  been  substantially  proved, 
then  the  jury  should  find  for  the  plaintiff.  McMaster  v. 
Dyer,  44  W.  Va.  646. 

2.      SEDUCTION    OF    MINOR. 

a.  Loss   of   services  —  Relinquishment   of   control   of 

minor. 

b.  Exemplary  damages. 

a.  Loss  of  services  of  minor  by  parent  —  Concerning 

parent 's  relinquishment  of  control  of  minor. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  daughter  of  the  plaintiff  was  se- 
duced by  defendant  whilst  at  the  defendant's  house  and 
in  his  employ,  and  that  she  was  under  the  age  of  twenty- 
one  years,  then  unless  the  evidence  in  this  case  should 
satisfy  you  that  the  plaintiff  had  relinquished  all  con- 
trol over  the  daughter  and  all  right  to  her  services,  the 
law  presumes  that  the  plaintiff  is  entitled  to  her  servi- 
ces, and  any  loss  of  services  sustained  by  the  plaintiff 
occasioned  by  such  acts  of  seduction  does  entitle  the 
plaintiff  to  recover.  Riddle  v.  McGinnis,  22  W.  Va.  262. 

b.  Same — Exemplary  damages. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  did  sustain  loss  of  services 
of  his  daughter,  and  that  such  loss  of  services  was  oc- 
casioned by  the  seduction  and  wrongful  act  of  the  de- 
fendant, then  you  may  take  into  consideration  the  shame, 
loss  of  respect  and  mortified  feeling  of  the  plaintiff,  and 
give  such  exemplary  damages  as  you  may  believe  the 
plaintiff  entitled  to.  Riddle  v.  McGinnis,  22  W.  Va  262. 


362  PHYSICIANS  AND  SURGEONS. 

CHAPTER  58. 
PHYSICIANS  AND  SURGEONS. 

a.  Degree  of  care  and  skill  required — Special  agree- 

ments. 

b.  Dismissal  of  physician  from  control  of  case. 

a.  Degree  of  care  and  skill  required — Special  agreement 

— Inference  as  to  negligence. 

The  court  instructs  the  jury  that  it  is  claimed  by  the 
plaintiff  that  the  defendant  was  employed  to  treat  pro- 
fessionally, as  a  surgeon,  his  injured  -  — .  By  the  de- 
fendant accepting  the  employment  he  bound  himself  to 
use  in  his  treatment  of  the  -  -  a  reasonable,  ordinary 
degree  of  care  and  skill  of  the  profession  in  his  com- 
munity, but  he  did  not  undertake  to  use  the  highest  de- 
gree of  care  and  skill,  nor,  in  the  absence  of  a  special 
agreement,  did  he  undertake  to  perform  a  cure. 

Nor  can  you  infer  that  the  defendant  was  negligent 
simply  because  a  cure  was  not  effected.  The  burden  of 
proving  his  case  rests  upon  the  plaintiff.  Laicson  v. 
Conaway,  37  W.  Va.  163. 

b.  Dismissal  of  physician  from  control  of  case — Care  and 

skill  exercised  prior  to  dismissal. 

Tin-  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff,  on  the  -  -  day  of 
— ,  18 — ,  discharged  the  plaintiff  from  the  manage- 
ment and  treatment  of  his  -  — ,  and  if  you  further 
find  from  the  evidence  that  prior  to  the  said  date  of  dis- 
missal of  defendant  by  the  plaintiff,  the  defendant  exer- 
cised the  ordinary  care,  skill  and  diligence  of  his  pro- 
fession in  his  community  in  the  management  and  treat- 


RAILROADS  AND  RAILROAD  COMPANIES.  363 

ment  of  the  -       — ,  then  you  must  return  a  verdict  for 
the  defendant.    Lawson  v.  Conaway,  37  W.  Ya.  164. 


CHAPTER  59. 
RAILROADS   AND   RAILROAD   COMPANIES. 

I.  INJURIES  TO  PERSONS  ON  OR  NEAR  TRACK. 

II.  EJECTMENT   OP   PERSONS   FROM    FREIGHT   TRAINS.  , 

III.  INJURIES  TO  ANIMALS. 

IV.  CAUSING  LOSS  OF  PERSONAL  PROPERTY. 

V.  INJURIES  TO  REAL  ESTATE. 

VI.  INJURIES   TO   WATER   MILLS. 

VII.  CONSTRUCTION  OF  CROSSINGS  AND  CATTLE  GUARDS. 

I.       INJURIES  TO  PERSONS  ON  OR  NEAR  TRACK. 

a.  Injuries  caused  by  failure  to  give  sufficient  warn- 

ing to  avoid  danger. 

b.  Use  of  track  as  footpath — Duty  of  person  so  using 

to  exercise  care  and  precaution. 

c.  Same — Risks  assumed  by  persons  using  track  as  a 

footpath. 

d.  Same  —  Requirements    to    look    for    approaching 

trains — Contributory  negligence. 

e.  Same. 

f.  Warning  signals — Statutory  requirements  as  to. 

g.  Same — Failure  to  give  warning  signals. 

h.  Injuries  to  persons  while  trespassing  on  track — 
Duty  of  engineer  and  fireman  to  keep  constant 
lookout  for  children. 

i.     Same. 

j.     Same — As  to  contributory  negligence. 

k.     Same — As  to  contributory  negligence. 


364  RAILROADS  AND  RAILROAD  COMPANIES. 

1.    Assessment  of  damages, 
m.    Gross  negligence — Contributory  negligence, 
n.     Same. 

o.     Concerning  duty  of  persons  to  stop,  look  and  listen 
—Presumption  as  to. 

a.  Injuries  caused  by  failure  to  give  sufficient  warning 

to  avoid  danger — Necessity  for  establishing  negli- 
gence. 

The  court  instructs  the  jury  that  to  enable  the  plain- 
tiff to  recover  the  jury  must  find  from  the  evidence  that 
the  defendant  negligently,  with  force  and  violence,  drove 
its  locomotive  engine  without  ringing  its  bell  or  blowing 
its  steam  whistle  for  a  sufficient  time  to  give  due  notice  to 
the  said  plaintiff  of  the  approach  of  the  said  locomotive  up- 
on and  against  the  said  plaintiffs  and  the  horse  and  wagon 
which  the  said  plaintiff  was  then  and  there  driving  along 
said  public  road,  and  over  the  said  public  railroad  cross- 
ing, and  that  by  means  of  such  engine  being  so  negligently 
driven,  as  aforesaid,  against  and  upon  the  plaintiff  and  his 
horse  and  wagon,  the  said  horse  was  and  became  greatly 
frightened  and  ran  away  with  and  overturned  plaintiff's 
wagon,  throwing  him  out  and  injuring  him.  Beyel  v. 
Railroad  Co.,  34  W.  Va.  545. 

b.  Use  of  track  as  a  footpath — Duty  of  person  so  using 

to  exercise  care  and  precaution. 

The  court  instructs  the  jury  that  every  person  of  ordi- 
nary intelligence  is  bound  to  know  that  a  railroad  yard, 
with  its  numerous  switches,  tracks,  and  appliances 
where  engines,  cars  and  trains  are  frequently  passing  and 
repassing,  is  a  place  of  more  than  ordinary  danger,  and 
it  becomes  his  legal  duty,  if  he  goes  on  such  yard,  to  use 
corresponding  care  and  caution  to  avoid  injury;  and 
even  though  the  defendant  company,  in  this  cause,  may 
have  permitted  persons  to  pass  along  and  over  its  tracks 
in  said  yard,  still,  if  the  jury  believe  from  the  evidence 


RAILROADS  AND  RAILROAD  COMPANIES.  365 

that  deceased  was  walking  along  on  the  track  in  the  yard 
and  using  the  same  as  a  footpath  on  going  from  one  part 
of  the  town  to  another,  it  was  negligence  on  his  part  to 
employ  such  track  in  said  yard  for  such  purpose  without 
exercising  the  greatest  care  and  caution  to  discover  the  ap- 
proach of  trains  and  avoid  being  struck  by  them.  Spicer  v. 
Railway  Co.,  34  W.  Va.  520. 

c.  Same — Risks  assumed  by  persons  using  track  as  a 

footpath. 

The  court  instructs  the  jury  that  persons  who  live  in 
the  vicinity  of  a  railroad  and  use  the  tracks  or  spaces 
between  the  tracks  as  a  footpath,  although  used  by  the 
public  generally,  without  objection  on  the  part  of  the 
railroad  company;  go  there  at  their  own  risk  and  enjoy 
the  license  subject  to  the  perils.  Spicer  v.  Railway  Co., 
34  W.  Va.  520. 

d.  Same — Requirements  to  look  for  approaching  trains 

— Contributory  negligence. 

The  court  instructs  the  jury  that  it  is  the  duty  of  a 
person  either  about  to  cross  or  walk  along  a  railroad  to 
look  in  every  direction  from  which  a  train  may  approach 
before  going  upon  a  railroad,  and  if  he  fail  to  look,  when 
he  could  have  seen  the  approaching  train  if  he  had  looked, 
it  is  such  proximate  contributory  negligence  as  will  pre- 
vent him  from  recovering  any  damages  for  injuries  sus- 
tained by  being  struck  by  a  train  immediately  after  go- 
ing upon  the  track,  unless  the  servants  of  the  railroad 
could  have  seen  or  discovered  him  in  time  to  avoid  his 
negligence  in  getting  upon  the  railway  track.  Spicer  v. 
Railway  Co.,  34  W.  Va.  520. 

e.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 


360  RAILROADS  AND  RAILROAD  COMPANIES. 

the  evidence  that  the  plaintiff's  intestate  was  walking 
along  the  railroad  tracks  of  the  defendant  company  with- 
in what  is  known  as  the  •' —  -  railroad  yard"  used  by 
the  defendant  for  the  purpose  of  switching  and  making  up 
trains;  and  that  there  were  several  tracks  and  numerous 
switches  therein,  and  trains  almost  constantly  passing 
and  re-passing  over  and  along  the  said  tracks  at  all  hours 
of  the  day  and  night;  and  while  he  was  so  walking  along 
the  said  tracks  in  the  said  yard,  in  order  to  avoid  one 
train  coming  towards  him  along  one  of  the  tracks,  he 
stepped  over  onto  another  track,  directly  in  front  of  a 
train  going  east,  without  looking  back  to  see  if  there 
was  such  a  train  on  such  track;  and  that,  if  he  had  so 
looked  back,  he  could  have  seen  the  train  that  struck  him 
before  he  stepped  onto  such  track,  and  have  avoided  being 
struck  by  it,  then  such  failure  to  so  look  back  was  negli- 
gence on  the  part  of  said  decedent  ;  and,  unless  the  jury,  find 
from  the  evidence  that  the  said  decedent  was  seen,  or 
could  have  been  seen,  by  the  trainmen  in  charge  of  the 
train  that  struck  him  for  a  sufficient  length  of  time  after 
he  stepped  on  the  track  in  front  of  the  train,  before  he 
was  struck,  to  have  enabled  them  to  stop  the  train,  before 
he  was  struck,  or  give  decedent  sufficient  warning  to 
get  off  the  track,  then  they  must  find  for  the  defendant. 
Npicer  v.  Railway  Co.,  34  W.  Va.  521. 


f.    Warning  signals — Statutory  requirements   as  to. 

The  court  instructs  the  jury  that  the  statute  of  West 
Virginia  does  not  require  both  the  sounding  of  the  whistle 

• 

and  the  ringing  of  the  bell  on  an  engine  or  train  approach- 
ing a  public  street  or  crossing;  either  the  sounding  of  the 
whistle  or  the  ringing  of  the  bell  for  a  time  sufficient  to 
give  notice  of  the  approach  of  such  train  before  such 
street  or  crossing  is  reached,  is  sufficient.  Spicer  v.  Rail- 
way Co.,  34  W.  Va.  520. 


RAILROADS  AND  RAILROAD  COMPANIES. 


g.     Same  —  Failure  to  give  warning  signals. 

The  court  instructs  the  jury  that  if  they  find  from  the 
evidence  that  decedent  was  injured  while  walking  upon 
the  track  of  defendant's  railway  not  in  a  public  road  or 
crossing  of  a  public  road,  the  fact  that  no  signals  were 
given  by  the  servants  in  charge  of  the  defendant's  train 
for  the  crossing  of  -  —  street  would  not  be  such  neglect 
as  would  render  the  company  liable  for  the  injury  to  the 
decedent,  unless  the  servant  in  charge  of  defendant's 
train  knew,  at  the  time  the  train  was  being  backed,  or 
could  have  known,  by  the  exercise  of  care,  caution  and 
prudence,  that  decedent  was  on  the  track,  and  then  failed 
to  give  any  signals  or  warning  to  him  of  the  approach  of 
the  train.  Spicer  v.  Railway  Co.,  34  W.  Va.  521. 

h.  Injuries  to  persons  while  trespassing  on  track  —  Duty 
of  engineer  and  fireman  to  keep  constant  lookout 
for  children. 

The  court  instructs  the  jury  that  according  to  the  law 
of  West  Virginia  it  is  the  duty  of  the  engineer  and  fire- 
man on  an  engine  to  keep  a  constant  lookout  ahead  for  chil- 
dren that  may  be  trespassing  on  the  railroad  track,  so  as  to 
avoid  injury  to  them,  if  possible  ;  and  if  they  neglect  to  do 
so  the  railroad  company  employing  them  is  liable  for  any 
injury  caused  by  their  negligence.  Davidson  v.  Railway 
Co.,  41  W.  Va.,  411. 

i.     Same. 

The  court  instructs  the  jury  that  even  if  the  plaintiff's 
decedent  was  in  the  position  of  a  trespasser  on  the  de- 
fendant's property,  yet  it  was  the  duty  of  the  defendant 
to  exercise  ordinary  care  to  avoid  injury  to  him;  there- 
fore if  the  jury  believe  from  all  the  evidence  that  decedent 
could  have  been  seen  by  the  engineer  or  fireman  on  the 
engine  mentioned  in  the  evidence  by  the  exercise  of  ordi- 
nary care  in  time  to  stop  the  engine  and  avert  the  acci- 


368  RAILROADS  AND  RAILROAD  COMPANIES. 

dent,  it  was  their  duty  to  do  so,  and  if  they  neglected 
to  keep  a  constant  lookout  ahead,  and  thereby  failed  to 
see  him  in  time  to  stop,  the  defendant  railway  company 
is  liable,  and  the  jury  should  find  for  the  plaintiff.  David- 
son v.  Kuilinui  Co..  41  W.  A'a.  411. 


j.    Same. 

The  court  instructs  the  jury  that  even  if  the  plain- 
tiff's decedent  was  in  the  position  of  a  trespasser  on  the 
defendant's  property,  it  was  the  defendant's  duty  to  exer- 
cise ordinary  care  to  avoid  injury  to  him.  Therefore, 
if  the  jury  believe  from  all  the  evidence  in  this  case  that 
the  engineer  or  fireman  on  the  engine  mentioned  in  the 
evidence  did  see  the  hand  car  mentioned  in  evidence,  on 
which  the  said  decedent  was  riding,  in  time  to  stop  the 
engine  and  avert  the  accident,  it  was  their  duty  to  stop  the 
engine  as  soon  as  possible,  and  if  they  could  have  stopped 
it  in  time  to  avoid  the  injury  to  him  by  the  exercise  of 
ordinary  care,  and  neglected  to  do  so,  the  defendant  is  lia- 
ble and  the  jury  should  find  for  the  plaintiff.  Davidson  v. 
It'ii  heay  Co.,  41  W.  Ya.  411. 

k.     Same  —  As  to  contributory  negligence. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  in  this  case  that  the  plaintiff  permitted  his 
decedent,  a  boy  of  nine  years  of  age,  to  go  from  his  home 
at  -  —  ,  after  or  to  get  -  —  ,  but  did  not  know  that 
he  was  going  to  ride  on  a  hand  car,  he,  the  plaintiff,  is 
not  by  reason  of  such  permission,  guilty  of  contributory 
negligence,  and  the  defendant  cannot  be  relieved  from 
liability  solely  because  the  plaintiff  thus  permitted  his 
said  son  to  go  from  home.  Davidson-  v.  Railway  Co.,  41 
W.  Va.411. 

1.    Assessment  of  damages. 

The  court  instructs  the  jury  that  if  they  find  for  the 
plaintiff,  they  will  assess  his  damages  at  such  sum  as  they 


RAILROADS  AND  RAILROAD  COMPANIES.  369 

may  deem  just  and  right  so  as  not  to  exceed  the  sum  of 
$ .    Davidson  v.  Railway  Co.,  41  W.  Va.  412. 

m.     Gross  negligence — Contributory  negligence. 

The  court  instructs  the  jury  that  they  are  entitled  to 
consider  all  the  facts  and  circumstances  proven,  for  the 
purpose  of  determining  whether  the  defendant  was  guilty 
of  negligence.  If  they  believe  that  -  -  was  killed  by  a 
train  operated  by  the  defendant  on  the  -  -  day  of  -  — , 
19 — ,  at  -  — ,  and  should  they  find  that  defendant  was 
guilty  of  gross  negligence,  under  the  circumstances,  they 
should  find  for  the  plaintiff,  unless  said  -  -  was  guilty  of 
negligence  which  directly  contributed  to  his  death.  Mc- 
Ycy  v.  Raihcay  Co.,  46  W.  Va.  120. 

n.     Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  defendant's  train  killed  -  -  on  the 
night  of  -  — ,  -  — ,  at  -  — ,  and  that  such  train 
was  not,  under  the  circumstances  shown  in  evidence,  run 
with  reasonable  care  to  prevent  accidents,  this  will  render 
defendant  liable  for  his  death,  unless  it  was  shown  either 
by  the  evidence  of  plaintiff  that  said  -  -  was  guilty  of 
negligence  which  wras  in  part  the  cause  of  his  death,  or  de- 
fendant has  shown  such  negligence  by  a  preponderance 
of  the  testimony.  McVey  v.  Railway  Co.,  46  W.  Va.  120. 

o.     Concerning  duty  of  person  injured  to  stop,  look  and 

listen — Presumption  as  to. 

The  court  instructs  the  jury  that  there  is  no  presump- 
tion that  a  deceased  person,  killed  by  a  train  of  cars, 
did  not  stop  and  look  towards  a  train;  and  failure  on 
part  of  the  plaintiff  to  offer  proof  that  he  did  look  does 
not  create  such  presumption,  unless  the  evidence  shows 
that  he  must  have  seen  the  approaching  train  if  he  had 
looked  in  its  direction.  McVey  v.  Railway  Co.,  46  W.  Va. 
120. 


370  RAILROADS  AND  RAILROAD  COMPANIES. 

JI.       EJECTMENT  OF   PERSONS   FROM    FREIGHT  TRAINS. 

a.  With  whom  power  or  authority  to  eject  rests. 

b.  Same. 

c.  When    instruction    of   railroad   companies   do   not 

take  away  the  power  or  authority  of  conductors. 

a.  In  whom  power  or  authority  to  eject  rests. 

The  court  instructs  the  jury  that  in  absence  of  proof 
to  the  contrary,  the  power  or  authority  to  eject  any  and 
all  trespassers  from  the  freight  train  upon  which  the 
plaintiff  was  attempting  to  ride,  after  the  train  had  been 
signalled  to  leave  the  yard  at  -  — ,  by  the  conductor, 
and  going  -  -  on  the  main  track  on  its  regular  trip, 
and  upon  which  said  conductor  had  taken  his  position, 
belonged  to  the  conductor  thereof,  and  as  such  conductor, 
he  could  not  exercise  his  power  or  authority  so  as 
needlessly  or  wantonly  to  cause  injury  to  another,  even 
to  a  trespasser  on  his  train;  and  if  the  jury  believe  from 
the  evidence  that  such  conductor  did  exercise  such  power 
or  authority  by  commanding  or  ordering  said  plaintiff  to 
be  kicked  or  forced  from  said  train  while  the  said  train 
was  going  at  such  a  rate  of  speed  as  to  make  it  unsafe 
or  dangerous  to  life  or  limb  to  thus  eject  said  plaintiff 
from  said  train,  and  if  the  jury  further  believe  that  plain- 
tiff was  so  forced  or  ejected  from  said  train  and  thereby 
and  in  consequence  thereof  said  plaintiff  sustained  per- 
sonal and  physical  injury,  the  jury  are  authorized  under 
such  circumstances,  to  find  a  verdict  for  the  plaintiff,  and 
to  assess  his  damages  as  such  sum  as  the  evidence  may 
justify,  not  to  exceed  the  sum  laid  in  the  declaration. 
Landers  v.  Railroad  Co.,  46- W.  Va.  498. 

b.  Same. 

The  court  instructs  the  jury  that  when  a  railroad  train 
is  running  on  the  main  line  of  its  road  in  the  course  of 
its  regular  run,  and  is  manned  by  a  conductor,  engineer, 
fireman,  and  brakeman,  like  the  one  shown  in  the  evi- 


RAILROADS  AND  RAILROAD  COMPANIES.  371 

dence  here,  in  the  absence  of  proof  to  the  contrary,  all 
power  to  eject  rests  impliedly,  under  the  law,  with  the 
conductor,  and  such  power  must  be  exercised  either  by 
such  conductor  or  by  some  one  else  acting  under  his  order 
or  command.  Landers  v.  Railroad  Co.,  46  W.  Va.  498. 

c.    When  instructions  of  railroad  company  do  not  take 

away  the  power  or  authority  of  conductors. 

The  court  instructs  the  jury  that  the  special  instruc- 

tion offered  in  evidence,   reading  as  follows:     "Agents 

and  yard  masters  will  have  charge  of  and  direct  move- 

ment of  all  trains  and  trainmen  in  -       —   -    -  and 


authority  implied,  possessed  under  the  law  by  the  con- 
ductor of  a  through  freight  train  to  protect  and  care  for 
his  own  train,  while  the  same  may  have  been  on  the 
main  track,  going  on  its  regular  run  -  -  ,  with  the 
conductor  and  the  rest  of  the  crew  aboard,  after  the 
yard  master  had  signalled  the  conductor  to  leave,  then 
such  conductor,  after  his  train  had  started  and  was  mov- 
ing on  the  main  line  on  its  through  run  (although  it  may 
have  been  at  the  time  within  the  yard  limits  of  the  rail- 
road company),  had  the  authority  to  order  a  trespasser 
from  its  train;  and  if  the  jury  believe  from  the  evidence 
that  said  conductor  ordered  the  plaintiff  ejected  from  his 
said  train  under  such  circumstances,  then  such  conductor 
was  acting  in  the  line  of  his  duty,  and  within  the  scope 
of  his  duty,  and  implied  powers,  in  the  absence  of  evi- 
dence conferring  such  authority  upon  some  one  else  then 
on  the  said  train.  Landers  v.  Railroad  Co.,  46  W.  Va.  499. 

III.      INJURIES  TO  ANIMALS. 

a.  Injuries  occurring  on  track. 

b.  Injuries  occurring  at  private  crossings  —  Gross  neg- 

ligence. 

c.  Same. 


372  RAILROADS  AND  RAILROAD  COMPANIES. 

a.  Injuries  occurring  on  track. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff's  cattle  wandered  upon 
the  railroad  of  the  defendant  without  his  knowledge,  and 
being  there  were  killed  or  injured  by  a  passing  train  of 
cars  in  charge  of  the  defendant's  servants;  and  if  they 
further  believe  from  the  evidence  that  the  servants  of 
the  defendant  in  charge  of  the  train  could,  by  the  exer- 
cise of  reasonable  care  and  precaution,  after  they  saw  the 
cattle  of  the  plaintiff  on  the  railroad  track,  have  avoided 
injury  to  them,  and  they  failed  to  use  such  reasonable 
care  and  precaution,  the  jury  should  find  for  the  plain- 
tiff. Hawker  v.  Railroad  Co.,  15  W.  Va.  642. 

b.  Same — Injuries  occurring  at  private  crossing — Gross 

negligence. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence/  that  the  plaintiff  suffered  his  cattle  to  wander 
on  the  railroad  track  of  the  defendant,  at  a  crossing,  at  a 
time  when  a  passenger  train  was  due,  and  that  the  plain- 
tiff knew  that  the  passenger  train  was  accustomed  to 
pass  at  the  time  the  cattle  were  suffered  to  wander  on  said 
railroad,  this  constitutes  negligence  on  the  part  of  the 
plaintiff,  and  the  railroad  company  cannot  be  held  liable 
in  damages  for  any  injury  to  the  plaintiff's  cattle  from 
being  struck  by  the  train  under  such  circumstances,  un- 
less the  jury  believe  from  the  evidence  that  such  cross- 
ing was  a  private  crossing  in  a  lane  leading  from  one 
field  of  plaintiff's  farm  to  another,  constructed  and 
used  for  that  purpose,  by  the  authority  and  with  the  con- 
sent of  the  defendant,  and  that  the  injury  to  the  cattle 
was  caused  by  the  gross  negligence  of  the  defendant. 
Baylor  v.  Railroad  Co.,  9  W.  Va.  274. 

c.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 


RAILROADS  AND  RAILROAD  COMPANIES.  373 

the  evidence  that  the  cattle  of  the  plaintiff  wandered  on 
to  the  railway  track  of  the  defendant,  at  the  crossing  in 
the  declaration  mentioned,  in  front  of  an  approaching 
passenger  train,  when  the  engine  was  within  -  -  feet, 
or  thereabouts,  of  said  crossing,  and  that  the  said  pass- 
enger train  could  not  have  been  checked  or  stopped,  so  as 
to  have  prevented  the  injury,  in  the  space  of  -  -  feet,  or 
thereabouts,  by  the  ordinary  appliances,  then  the  defend- 
ant is  not  liable  for  killing  the  plaintiff's  cattle  at  said 
crossing,  and  the  jury  should  find  for  the  defendant,  unless 
they  further  believe  from  the  evidence  that  after  the  de- 
fendant discovered  that  the  said  cattle  were  about  to  come 
upon  the  track,  they  might,  by  the  exercise  of  proper  care 
and  prudence,  have  prevented  the  injury.  Baylor  v.  Rail- 
road Co.,  9  W.  Va.  276. 

IV.   CAUSING  LOSS  OF  PERSONAL  PROPERTY. 

a.  Burden  of  proof — Preponderance  of  evidence. 

b.  Ordinary  care — When  exercised,  defendant  not  lia- 

ble. 

a.  Burden  of  proof — Preponderance  of  evidence. 

Tha  court  instructs  the  jury  that  the  burden  of  proof  is 
on  the  plaintiffs  to  show  the  negligence  complained  of,  and 
if  they  have  failed  to  show  by  a  preponderance  of  the  evi- 
dence, that  the  accident  resulted  from  the  negligence  of 
the  defendant,  their  verdict  must  be  for  the  defendant. 
Fawcett  v.  Railway  Co.,  24  W.  Va.  757. 

b.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant,  by  its  agents  and  ser- 
vants, was  operating  its  road  in  such  manner  as  prudent 
and  reasonable  agents  would  operate  it  under  like  circum- 
stances, and  said  agents  and  servants  were  using  ordinary 


374  RAILROADS  AND  RAILROAD  COMPANIES. 

care  in  the  discharge  of  their  duties,  then  the  defendant 
is  not  liable  in  this  action.  Fawcett  v.  Railway  Co.,  24 
W.  Va.  758. 

V.       INJURY  TO  REAL  ESTATE. 

a.  Value  of  property  immediately  before  and  imme- 

diately after  construction  of  railroad. 

b.  Same — When  no  part  of  property  taken. 

c.  Permanent  injuries — When  value  of  property  de- 

preciated. 

a.  Value  of  property  immediately  before  and  immediate- 

ly after  construction  of  railroad. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff's  property  was  worth  as 
much  immediately  after  the  construction  of  the  defend- 
ant's railroad  as  it  was  immediately  before  said  railroad 
was  constructed,  then  they  shall  find  for  the  defendant. 
Stewart  v.  Railroad  Co.,  38  W.  Va.  444. 

b.  Same — When  no  part  of  property  taken. 

The  court  instructs  the  jury  that  when  an  action  is 
brought  to  recover  damages,  where  no  part  of  the  plain- 
tiff's property  has  been  taken,  but  simply  damaged  by  a 
public  improvement,  damages  cannot  be  had  unless  the 
property  claimed  to  be  damaged  has  been  depreciated  in 
value  by  the  construction  of  the  public  improvement.  In 
other  words,  if  the  fair  market  value  of  the  property  is  as 
much  immediately  after  the  construction  of  the  improve- 
ment as  it  was  immediately  before  the  improvement  was 
made,  no  damages  can  be  sustained  and  no  recovery  can 
be  had.  Therefore,  if  the  jury  believe  from  the  evidence 
that  the  fair  market  value  of  the  plaintiff's  property  was 
as  much  immediately  after  the  construction  of  the  de- 
fendant's railroad  as  it  was  immediately  before,  then  he 


RAILROADS  AND  RAILROAD  COMPANIES.     375 

has  sustained  no  damages  which  can  be  the  subject  of  a 
recovery  in  this  suit,  and  they  should  find  for  the  defend- 
ant. Steicart  v.  Railroad  Co.,  38  W.  Va.  444. 

c.    Permanent  injuries — When  value  of  property  depre- 
ciated. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  property  of  the  plaintiff  has  been 
permanently  injured  and  its  value  depreciated  by  the 
laying  and  construction  of  the  embankment  and  railroad 
track,  and  that  the  defendant  constructed  and  laid,  or 
had  constructed  and  laid  by  its  agents,  the  said  embank- 
ment and  track,  then  the  plaintiff  is  entitled  to  recover 
damages.  Hast  v.  Railroad  Co.,  52  W.  Va.  402. 

VI.      INJURIES    TO    A    WATER    MILL. 

a,  Burden  of  proof — Nominal  damages. 

b.  Necessity  for  proving  specific  cause  of  injury. 

a.  Burden  of  proof — Nominal  damages. 

The  court  instructs  the  jury  that  the  burden  is  upon 
the  plaintiff  to  prove  to  them  the  damages,  if  any,  which 
he  has  suffered  by  reason  of  the  alleged  wrongful  act  of  the 
defendant,  and  wherein  and  what  such  damages  are;  and 
if  the  plaintiff  has  failed  to  prove  any  damages,  although 
he  proves  the  wrongful  act  by  the  defendant  whereby  his 
water  power  was  diminished,  the  jury  can  give  only  nomi- 
nal damages.  Watts  v.  Railroad  Co.,  39  W.  Va.  208. 

b.  Necessity  for  proving  specific  cause  of  injury. 

The  court  instructs  the  jury  that  if  the  plaintiff  would 
recover  for  loss  of  profits  in  operating  said  mill  conse- 
quent upon  the  alleged  wrongful  acts  of  the  defendant, 
it  is  his  duty  to  prove  wherein,  when  and  what  profit  he 
lost,  and  the  amount  thereof,  as  near  as  may  be;  and  it 


376  RAILROADS  AND  RAILROAD  COMPANIES. 

is  not  sufficient  for  him  to  prove  simply  that  his  water 
power  has  been  diminished,  thus  lessening  the  amount  of 
work  done  in  a  given  time,  but  he  must  go  further,  and 
show  that  custom  and  work  were  tendered  and  refused  be- 
cause of  incapacity  to  meet  the  demand,  or  that  it  took 
him  so  much  longer  to  accommodate  the  custom  so  offered, 
and  prove  with  some  degree  of  certainty,  or  approxima- 
tion, the  extra  time  so  required  a.nd  cost  expended. 
Watts  v.  Railroad  Co.,  39  W.  Va.  208. 

VII.      CONSTRUCTION  OF  CROSSINGS  AND  CATTLE  GUARDS. 

a.  Convenient  crossings. 

b.  Construction  of  gates  in  lieu  of  cattle  guards. 

a.  Convenient  crossings. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  railroad  company  did  construct 
convenient  crossings  on  the  plaintiff's  land  at  the  time 
the  road  was  opened  for  business,  then  the  plaintiff  cannot 
now  complain  of  the  failure  to  construct  other  crossings 
at  other  points  on  his  lands,  provided,  they  believe  from 
the  evidence  that  the  crossing  so  constructed  was  con- 
venient. Clarke  v.  Railroad  Co.,  39  W.  Va.  743. 

b.  Construction  of  gates  in  lieu  of  cattle  guards. 

The  court  instructs*  the  jury  that  they  have  the  right  to 
consider  the  construction  of  the  gates  by  the  defendant 
at  the  crossings  in  connection  with  the  other  evidence  in 
the  case,  in  arriving  at  a  conclusion  whether  or  not  the 
defendant  has  failed  to  construct  suitable  cattle  guards, 
and  if  they  believe  from  the  evidence  that  the  construction 
of  the  gates  by  the  defendant  was  sufficient  to  prevent 
cattle  and  other  stock  from  going  upon  the  said  railroad, 
then  they  have  a  right  to  consider  this  in  arriving  at  a 
conclusion  as  to  the  necessity  for  the  construction  of 
cattle  guards.  Clarke  v.  Railroad  Co.,  39  W.  Va.  744. 


REAL  ESTATE.  377 

CHAPTER  60. 
REAL  ESTATE. 

a.  Commissions  for  making  sale  of  real  estate. 

b.  Same — Consideration  of  contract  for  making  sale. 

c.  When  agent  entitled  to  commissions  though  sale 

not  made. 

d.  Same — Revocation  of  contract. 

a.  Commissions  for  making  sale  of  real  estate. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  and  all  the  circumstances  that  the  defend- 
ant -  — ,  employed  -  — ,  the  plaintiff,  to  sell  his 

farm  at  the  price  of  $ ,  and  that  the  plaintiff  did  sell 

said  farm  at  the  price  and  upon  the  terms  agreed  upon 
in  said  contract  of  employment  and  if  you  further  find 
from  all  the  evidence  and  circumstances  that  said  de- 
fendant was  to  pay  said  plaintiff  $ —  -  for  making  said 
sale,  then  you  should  find  for  the  plaintiff.  Ober  v. 
Stephens,  54  W.  Va.  356. 

b.  Same — Consideration  of  contract  for  making  sale. 
The  court  instructs  the  jury  that  it  is  not  necessary 

in  order  to  support  a  contract,  that  the  consideration 
should  consist  of  any  specified  sum  of  money  or  article 
of  value,  but  it  may  consist  in  an  act  to  be  performed, 
and  if  the  jury  believe  from  the  evidence  that  -  -  em- 
ployed -  -  to  sell  his  lands  for  a  remuneration  stipu- 
lated in  the  conrtact,  to  be  paid  thereupon  upon  the  sale  of 
the  lands,  that  this  will  be  a  sufficient  consideration. 
Rowan  &  Co.  v.  Hull,  55  W.  Va.  340. 

c.  When  agent  entitled  to  commissions  though  sales  not 

made. 
The  court  instructs  the  jury  that  if  they  believe  from 


378  SABBATH  BREAKING. 

the  evidence  that  -  -  was  a  real  estate  agent,  and  as 
such  agent,  had  a  contract  with  the  defendant, 
whereby  he  was  to  sell  certain  lands  for  him,  and  in 
pursuance  of  such  contract  he  procured  a  purchaser 
within  the  time  specified  in  said  contract,  who  was  able, 
read}'  and  willing  to  buy  on  the  terms  upon  which  he 
was  authorized  in  said  contract  to  sell,  the  said  - 
is  entitled  to  recover  the  commission  stipulated  in  said 
contract,  even  though  the  jury  further  believe  from  the 
evidence  that  the  said  contract  of  purchase  was  never 
completed,  if  they  believe  the  completion  was  prevented 
by  the  act  or  default  of  the  defendant.  Rowan  &  Co.  v. 
Hull,  55  W.  Va.  340. 

d.    Same — Revocation  of  contract. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff,  -  — ,  procured  - 
to  examine  said  land  with  the  view  of  purchasing  the 
same,  and  did  this  before  any  revocation  of  their  con- 
tract, and  that  the  said  -  —  afterwards  made  a  bona 
fide  offer  to  purchase  said  land  at  the  price  agreed  upon 
in  said  contract  in  pursuance  of  his  solicitation  by 
said  -  — ,  then  the  said  -  -  is  entitled  to  recover 
his  commission  as  stipulated  in  said  contract.  Rowan 
d  Co.  v.  Hull,  55  W.  Va.  340. 


CHAPTER  61. 
SABBATH  BREAKING. 

a.    Work  of  necessity  or  charity — Burden  of  proof. 

The  court  instructs  the  jury  that  the  burden  of  proof 
is  on  the  state  to  establish  bevond  reasonable  doubt  the 


SALES.  379 

fact  that  the  defendant  pumped  or  operated  certain 
oil  wells  in  —  —  county,  on  a  Sabbath  day,  within  one 
year  prior  to  the  finding  of  this  indictment ;  and  further, 
that  the  burden  of  proof  is  on  the  state  to  prove  that 
such  pumping  or  operating  was  not  a  work  of  necessity 
or  charity.  State  v.  AfcBee,  52  W.  Va.  260. 


CHAPTER  62. 
SALES. 

1.  CONTRACT   OF   SALE. 

2.  DELIVERY    AND    ACCEPTANCE. 

3.  SHIPMENT  OF  GOODS  TO  WRONG  PARTY. 

4.  NON-ACCEPTANCE. 

5.  TURNING  GOODS  OVER  TO  THIRD  PARTY. 

6.  SHIPMENT  OF  GOODS  IN  EXCESS  OF  PURCHASE. 

7.  FAILURE  OF  CARRIER  TO  DELIVER  GOODS. 

8.  FALSE  REPRESENTATIONS  BY  SELLER. 

1.   CONTRACT  OF  SALE. 

a.  Written  contract — Absence  of  fraud. 

b.  Verbal  contract — Conditional  sale. 

a.  Written  contract  only  evidence  in  determining  terms, 
of  agreement. 

The  court  instructs  the  jury  that  in  the  absence  of 
fraud,  the  written  contract  dated  the  -  -  day  of 

— ,  is  the  only  evidence  to  be  considered  in  determining 
the  terms  of  the  agreement  between  the  plaintiff  and  de- 
fendant as  to  the  goods  sold  and  the  price  to  be  paid. 
Hood  v.  Bloch,  29  W.  Va.  248. 


380  SALES. 

b.  Verbal  contract  —  Conditional  sale  — Right  of  pur- 
chaser to  determine  whether  goods  satisfactory. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  machine  in  question  was  sold  to 
the  defendant  with  the  understanding  and  agreement 
that  if  it  did  not  give  satisfaction  to  the  defendant  the 
seller  would  take  it  back,  then  the  defendant  had  a  right 
to  refuse  to  keep  the  machine  if  it  did  not  in  fact  give 
him  satisfaction  and  the  burden  of  proving  that  it  did 
give  him  satisfaction  is  on  the  plaintiff.  Osborne  &  Co. 
v.  Francis,  38  W.  Va,  313. 


2.      DELIVERY    AND    ACCEPTANCE. 

a.  What  constitutes  delivery — Delivery  of  goods  to  car- 
rier for  shipment — Injury  to  goods  after  arrival  at 
destination  and  while  in  care  of  carrier. 
The  court  instructs  the  jury  that  if  they  find  from 
the  evidence  that  the  plaintiff  sold  to  the  defendant  the 
wheat  in  question,  the  same  to  be  delivered  in  a  railroad 
car  of  the  -  -  railroad  company  at  the  depot  of  said 
company  in  the  city  of  -  — ;  that  within  a  reasonable 
time  thereafter  the  plaintiff  delivered  to  the  said  rail- 
road company  the  said  wheat  for  transportation  in  one 
of  its  cars,  to  said  depot;  that  the  said  wheat  was  there- 
upon placed  by  the  said  company  in  one  of  its  cars, 
to  which  was  affixed,  according  to  the  usual  course  of 
business,  the  address  of  the  defendants;  and  that  the 
said  wheat  arrived  in  due  course  of  transit,  in  the  said 
car,  and  in  proper  condition  at  such  depot,  then  the 
jury  should  find  for  the  plaintiff,  even  though  they 
should  further  believe  that  the  said  wheat  was,  after  such 
arrival,  injured  or  destroyed  by  water  or  otherwise. 
Bloyd  v.  Pollock,  27  W.  Va.  84. 


SALES.  381 

3.  SHIPMENT  OF  GOODS  TO  WRONG   PARTY. 

a.    Notice  to  seller  of  mistake  in  shipment.  **• 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  sale  of  the  flour  in  controversy 
was  made  by  -  -  to  -  -  for  the  firm  of  -  -  & 
Co.,  at  -  — ,  and  that  said  -  — ,  (the  salesman), 
caused  the  said  flour  to  be  shipped  by  plaintiffs  to  - 
&  Co.,  (another  firm),  without  instructions  from  said 

-  &  Co.,   (the  other  firm),  and  that  said  -         -  & 
Co.,    (the    other   firm),    notified   the   plaintiff   within    a 
reasonable  time  after  the  arrival  of  the  flour  at  -        —  of 
his  mistake  in  the  shipping  of  the  flour,  and  that  said 

-  &  Co.,  (the  other  firm),  exercised  no  acts  of  own- 
ership over  said  flour  after  they  ascertained  the  contents 
of  the  car  by  opening  it,  then  the  jury  should  find  for  the 
defendant.     Thompson  v.  Douglass,  35  W.  Ya.  345. 

4.  NON-ACCEPTANCE. 

a.  Notice    of    non-acceptance    required  —  Failure    of 

purchaser  to  return  goods. 

b.  Same. 

c.  Same — Passing  of  title — Burden  of  proof. 

a.     Notice  for  non-acceptance  required. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  received  invoices  of  the 
goods  in  controversy,  purporting  that  the  defendant 
bought  the  goods  of  the  plaintiffs,  and  also  received  the 
goods  specified  in  the  invoices,  and  did  not  return  the 
goods  within  a  reasonable  time,  or  notify  the  plaintiffs 
within  a  like  time  that  he  would  not  accept  the  goods, 
then  that  the  jury  can  consider  these  circumstances  as 
tending  to  show  that  the  plaintiffs  sold  the  goods  in 


382  SALES. 

controversy  to  the  defendants.     Bartholomae  v.   Paull, 
18  W.  Va.  776. 

4 

b.  Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  invoices  or  bills  of  particulars  express- 
ing that  the  defendant  bought  of  the  plaintiffs  the  goods 
in  controversy,  and  that  they  had  been  or  were  about  to 
be  shipped  to  him  as  freight  by  railroad,  were  mailed 
by  the  plaintiffs  to  the  defendant,  and  were  received  by 
him,  and  that  the  goods  whose  sale  and  arrival  as  indi- 
cated by  such  invoices  were  received  in  due  time  by  the 
defendant  from  the  railroad,  then  that  these  are  circum- 
stances tending  to  show  a  sale  of  the  goods  thus  re- 
ceived, and  would  render  the  defendant  liable  to  the 
plaintiffs  therefor  unless  he,  within  a  reasonable  time, 
returns  the  goods  to  the  plaintiff  or  gives  them  notice 
that  he  does  not  accept  them.  Bartholomae  v.  Paull,  18 
W.  Va.  775. 

c.  Passing  of  title — Burden  of  proof. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiffs  were  the  owners  of  - 
barrels  of  -  -  described  in  the  declaration  and  that 
the  plaintiffs  sent  said  -  -  to  -  -  in  the  month 
of  -  — ,  to  be  delivered  to  W.,  or  to  some  other  per- 
son in  his  behalf,  and  if  the  jury  further  believe  from  the 
evidence  that  said  W.  after  being  notified  that  the  - 
had  been  shipped,  refused  to  buy  or  accept  said  -  -  as 
a  purchase,  but  that  the  said  W.  did  afterwards  take 
the  same  into  his  possession  as  the  property  of  the  plain- 
tiffs with  the  understanding  that  he  would  hold  the  same 
for  the  plaintiffs  and  subject  to  their  order — then  so 
long  as  W.  held  such  -  -  under  that  arrangement, 
the  -  -  remained  the  property  of  the  plaintiffs,  and 
W.  had  no  title  thereto  and  could  not  pass  title  to  the 


SALES.  383 

or  make  lawful  sale  of  the  property.    And  if  the 

jury  believe  from  the  evidence  that  W.  did  take  such 

into  his  possession  agreeing  to  hold  it  for  the 

plaintiffs  as  their  property  as  above  set  forth,  then  be- 
fore the  jury  can  find  that  the  said  -  -  became  the 
property  of  W.,  the  burden  of  proof  is  on  the  defendant 
to  show  by  a  fair  preponderance  of  the  testimony  that 
W.  lawfully  acquired  title  to  the  property  after  agree- 
ing to  hold  it  for  the  plaintiffs.  Ullman  d  Co.  v.  Bid- 
dies, 53  W.  Va.  416. 

O.      TURNING   GOODS   OVER   TO   THIRD    PARTY. 

a.  Consent  of  seller  required. 

b.  Same — Acts  of  third  party  in  offering  goods  for 

sale  —  Shipment    of    remaining    goods    back    to 
seller — Agency. 

a.  Concerning  purchaser's  right  to  turn  goods  over  to 

third  party  without  the  consent  of  seller. 
The  court  instructs  the  jury  that  the  defendant  had 
no  right  to  put  the  goods  in  controversy  in  the  hands  of 
any  third  party  upon  any  kind  of  agreement  whereby 
such  party  might  appropriate  the  goods  to  his  own  use 
without  first  having  obtained  the  plaintiff's  consent 
thereto.  Bartholomae  v.  Paull,  18  W.  Va.  776. 

b.  Same — Acts  of  third  party  in  offering  goods  for  sale 

When  third  party  regarded  as  agent  of  purchaser 
— Shipment  of  remaining  goods  by  purchaser  to 
seller. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  received  invoices  of  the 
goods  in  controversy,  purporting  a  sale  of  the  goods  by 
the  plaintiffs  to  him,  that  the  goods  themselves  were  re- 
ceived by  him  and  the  freight  paid  on  the  same  by  him, 


;;si  SALES. 

and  that  he  without  plaintiff's  knowledge  or  consent 
turned  the  goods  over  to  -  —  ,  either  with  or  without 
an  understanding  between  him  and  the  defendant,  that 
he,  -  —  ,  was  to  treat  with  the  plaintiffs  for  the  goods, 
that  -  -  took  charge  of  the  goods,  offered  and  showed 
them  for  sale,  sold  some  or  retained  some  in  his  own 
store  from  each  of  the  bills  of  goods  in  controversy  with 
the  defendant's  knowledge  and  consent,  that  the  defend- 
ant took  the  residue  of  the  goods  in  controversy  from 

—  's  custody  and  shipped  them  back  to  the  plaintiffs, 
then  that  the  goods  were  in  -  —  's  hands  as  the  agent 
of  the  defendant;  that  -  —  's  acts  in  regard  thereto 
are  to  be  regarded  as  the  acts  of  the  defendant,  and  are 
as  binding  on  him  as  though  done  by  himself,  and  amount 
to  an  acceptance  of  said  goods  by  the  defendant,  and 
render  him  liable  to  the  plaintiffs  therefor.  Bartholo- 

v.  Paull,  18  W.  Va.  774. 


G.      SHIPMENT   OF   GOODS    IX    EXCESS    OF    PURCHASE. 

a.    When  purchaser  liable  for  acceptance  of  goods  in  ex- 

cess of  purchase. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  gave  an  order  to  the 
plaintiffs  for  a  lot  of  goods,  the  kind  and  value  of  which 
was  not  agreed  upon  in  terms,  but  the  value  was  to  be 
about  $300.00,  that  discretion  was  given  to  the  plaintiffs, 
or  their  employe,  -  —  ,  to  select  the  goods  for  such 
an  order,  or  any  part  of  them,  that  the  goods  were  to  be 
shipped  by  the  plaintiffs  to  defendant  as  manufactured, 
that  they  were  shipped  at  different  times  as  manufactur- 
ed and  shown  in  the  bills  of  particulars  in  this  case. 
and  invoices  or  bills  of  particulars  of  each  shipment  ex- 
pressing that  the  defendant  bought  the  goods  of  the  plain- 
tiffs, and  the  manner  of  their  shipment  to  the  defend- 


SALES.  385 

ant  were  sent  by  mail  so  as  to  reach  the  defend- 
ant in  time  to  give  notice  to  him  of  the  kind,  quantity 
and  value  of  the  goods  about  to  arrive,  that  such  in- 
voices were  received,  that  the  goods  arrived  and  were 
delivered  to  the  defendant  as  stated  in  said  invoices, 
that  the  defendant  paid  the  freight  on  said  several  bills 
of  goods,  then  that  he  is  liable  to  the  plaintiffs  for  all 
of  said  goods,  though  in  excess  of  the  amount  of  $300.00, 
unless  within  a  reasonable  time,  he  returned  or  offered  to 
return  or  gave  notice  that  he  would  not  accept  the  goods 
received  because  in  excess  of  the  quantity  ordered.  Bar- 
tholomae  v.  Paull,  18  W.  Va.  775. 

7.      FAILURE    OP    CARRIER   TO   DELIVER   GOODS. 

a.  Agreement  of  seller  as  to  shipment  of  goods. 

b.  Liability  of  purchaser,  though  carrier  fail  to  de- 

liver goods. 

a.    Agreement  of  seller  as  to  shipment  of  goods. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  sold  to  the  defendant  the 
wheat  in  question  and  agreed  to  deliver  the  same  in  a 
car  belonging  to  the  -  -  railroad  company  at  the 
depot  of  said  company  in  -  — ;  that  within  a  rea- 
sonable time  thereafter  the  plaintiff  shipped  the  said 
wheat  in  a  car,  properly  addressed,  of  the  said  com- 
pany ;  that  the  said  car  so  containing  the  said  wheat  duly 
arrived  at  the  said  depot,  then  from  and  after  such  ar- 
rival, the  said  railroad  company  was  not  the  agent  of 
the  plaintiff  with  respect  to  said  wheat,  and  no  respon- 
sibility attaches  to  the  plaintiff  by  reason  of  any  failure, 
if  failure  there  was,  on  the  part  of  the  said  railroad 
company  to  give  notice  to  the  defendants  of  such  ar- 
rival. Bloyd  v.  Pollock,  27  W.  Va.  84. 


386  SALES. 

b.    Liability  of  purchaser,  though  carrier  fail  to  deliver 

goods. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  bought  the  wheat  in  the 
testimony  referred  to;  that  the  same  was  to  be  deliver- 
ed by  the  plaintiff  in  a  car  of  the  -  -  railroad  com- 
pany at  the  freight  depot  of  said  company  in  the  city  of 
— ,  and  that  the  car  containing  said  wheat  duly  ar- 
rived at  said  depot,  with  the  said  wheat  in  good  condi- 
tion, then  from  the  time  of  such  arrival  the  said  - 
belonged  to  the  defendant,  and  their  liability  to  pay  for 
the  same  attached,  even  though  there  may  have  been  a 
failure  on  the  part  of  the  railroad  company  to  notify 
the  defendant  of  such  arrival.  Bloyd  v.  Pollock,  27  W. 
Va.  85. 
« 

8.      FALSE   REPRESENTATIONS   BY    SELLER. 

a.  Eeliance    by    purchaser    upon    representations    of 

seller — False  representations,  though  not  fraudu- 
lent, avoid  contract. 

b.  Same — Condition  of  goods  sold  as  compared  with 

that  delivered. 

a.  Reliance  by  purchaser  upon  representations  of  seller 
—  false  representations,  though  not  fraudulent, 
avoid  contract. 

The  court  instructs  the  jury  that  if  a  seller,  in  order  to 
induce  a  sale,  makes  a  false  representation  as  to  any  ma- 
terial fact,  by  which  the  purchaser  is  mislead  to  his  in- 
jury, and  in  which  the  purchaser  is  presumed  to  have 
trusted  to  the  seller,  then  the  contract  founded  on  such 
representations  is  void,  whether  the  seller  knew  the 
representations  to  be  false  at  the  time  they  were  made 
or  not,  and  whether  made  with  a  fraudulent  intent  or 
not.  Hood  v.  Block,  29  W  .Va.  250. 


SEDUCTION.  387 

b.    Same — Condition  of  goods  sold  as  compared  to  that 

delivered. 

The  court  instructs  the  jury  that  in  considering  the 
question  of  fraud  or  misrepresentation  in  the  procure- 
ment of  the  contract  of  sale,  you  must  first  find  the  con- 
dition of  the  cheese  on  the  -  -  day  of  —  — ,  as  com- 
pared with  the  lot  sold  to  the  defendant  by  plaintiff. 
Hood  v.  BlocTi,  29  W.  Va.  248. 


CHAPTER  63. 
SEDUCTION. 

a.  Action  by  father  for  seduction  of  minor  daughter — 
Father's  control  over  and  right  of  services  of 
daughter. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  in  this  cause  that  the  plaintiff  did  sustain 
loss  of  services  of  his  daughter,  and  that  such  loss  of 
service  was  occasioned  by  the  seduction  and  wrongful 
act  of  the  defendant,  then  you  may  take  into  considera- 
tion the  shame,  loss  of  respect  and  mortified  feeling  of 
the  plaintiff,  and  give  such  exemplary  damages  as  you 
may  believe  the  plaintiff  entitled  to.  The  jury  are  fur- 
ther instructed  that  if  they  believe  from  the  evidence  in 
this  case  that  the  daughter  of  the  plaintiff  was  seduced 
by  the  defendant  whilst  at  the  defendant's  house  and  in 
his  employ,  and  that  she  was  under  the  age  of  twenty-one 
years,  then  unless  the  evidence  in  this  cause  should  satis- 
fy you  that  the  plaintiff  had  relinquished  all  control 
over  the  daughter  and  all  right  to  her  services,  the  law 
presumes  that  the  plaintiff  is  entitled  to  her  services, 
and  any  loss  of  services  sustained  by  the  plaintiff  occa- 


388  STREET  RAILWAYS. 

sioned  by  such  act  of  seduction,  does  entitle  the  plain- 
tiff to  recover.    Riddle  v.  McGinnis,  22  W.  Va.  262. 


CHAPTER  64. 

STREET  RAILWAYS. 

(See  also  Mannon  v.  Railway  Co.,  56  W.  Va.  554,  and 
Sample  v.  Railway  Co.,  50  W.  Va.  472.) 

LIABILITY  AS  CARRIERS  OF  PASSENGERS. 

a.  Presumption   of  negligence — Burden  of  proof. 

b.  As  to  liability  when  no  negligence  shown. 

c.  Contributory  negligence — Burden  of  proof. 

d.  Same — Acts  done  by  person  injured  through  fright 

or  excitement. 

e.  Same — What  to  be  considered  in  determining  as  to 

negligence. 

f.  Same — How  responsibility  for  contributory  negli- 

gence escaped. 

g.  Same — Care  required  of  person  injured. 

h.     When   contributory  negligence  one  of  the  causes 

of  injury, 
i.     Same. 

a.    Presumption  of  negligence — Burden  of  proof. 

The  court  instructs  the  jury  that  where  a  passenger 
is  injured  by  any  accident  attending  the  running  of  a 
street  car,  the  presumption  is  that  it  occurred  by  the 
negligence  of  the  driver ;  and  the  burden  of  proof  is  then 
on  the  proprietors  of  the  street  car  to  establish  that 
there  has  been  no  negligence  whatsoever,  and  that  the 
damage  or  injury  has  been  occasioned  by  inevitable 


STREET  RAILWAYS.  380 

casualty,  or  by  some  cause  which  human  care  and  fore- 
sight could  not  prevent.  Dimmey  v.  Railroad  Co.,  27  W. 
Va.  52. 

b.  No  liability  when  no  negligence  is  shown. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  neither  the  defendant,  its  agents  or 
employes  in  charge  of  the  car  at  the  time  the  accident 
in  question  occurred,  were  negligent  in  the  conduct  or 
operation  of  the  car,  then  the  plaintiff  is  not  entitled  to 
recover,  and  the  jury  should  find  a  verdict  for  the  de- 
fendant. Normile  v.  Traction  Co.,  57  W.  Va.  132. 

c.  Contributory  negligence — Burden  of  proof. 

The  court  instructs  the  jury  that  with  respect  to  the 
question  of  contributory  negligence  on  the  part  of  the 
decedent,  the  burden  of  proof  is  on  the  defendant, 
Dimmey  v.  Railroad  Co.,  27  W.  Va.  52. 

d.  Same — Acts  done  by  persons  injured  through  fright 

or  excitement. 

The  court  instructs  the  jury  that  if  the  deceased 
through  fright  or  excitement,  did  at  the  time  of  the  ac- 
cident that  which  a  reasonably  prudent  and  careful  per- 
son, of  the  same  class,  would  not  have  done  under  the 
the  same  circumstances,  and  such  act  on  her  part  con- 
tributed immediately  to  the  injury,  the  plaintiff  cannot 
recover,  and  the  jury  must  find  for  the  defendant. 
Dimmey  v.  Railroad  Co.,  27  W.  Va.  53. 

e.  Same — What  to  be  considered. 

The  court  instructs  the  jury  that  in  ascertaining 
whether  a  person  has  been  negligent  or  not,  it  is  proper 
to  consider  the  circumstances  in  which  he  is  placed,  so 
that  what  might  be  negligence  under  some  circumstances, 
might  not  be  so  under  others,  and  so  that  it  might  be 


390  STREET  RAILWAYS. 

proper  for  one  to  do  in  view  of  imminent  danger  that 
which  would,  at  other  times,  be  considered  rash,  yet 
this  rule  only  permits  a  person  to  do  what  persons  of 
ordinary  prudence  of  the  same  class  would  have  done 
under  like  circumstances;  therefore  if  -  — ,  at  the  time 
of  the  accident  did  what  ordinarily  prudent  and  careful 
persons  of  the  same  class  would  not  have  done  under 
similar  circumstances,  and  if  such  act  on  her  part  con- 
tributed immediately  to  the  injury,  then  the  plaintiff  can- 
not recover.  Dimmey  v.  Railroad  Co.,  27  W.  Va.  52. 

f.  Same — How  responsibility  of  contributory  negligence 

escaped. 

The  court  instructs  the  jury  that  to  escape  the  re- 
sponsibility of  contributory  negligence,  a  plaintiff  in  an 
action  for  damages  for  an  alleged  negligence  of  another, 
is  not  required  to  exercise  more  care  than  is  usual  under 
similar  circumstances  among  careful  persons  of  the  class 
to  which  such  plaintiff  belongs.  Normile  v.  Traction  Co., 
57  W.  Va.  132. 

g.  Same — Care  required  of  person  injured. 

The  court  instructs  the  jury  that  in  considering  the 
question  of  contributory  negligence,  that  the  jury  are  in- 
structed that  the  decedent  was  not  required  to  exercise 
more  care  than  is  usual  in  similar  circumstances  among 
careful  women.  Dimmey  v.  Railroad  Co.,  27  W.  Va.  52. 

h.    When  contributory  negligence  one  of  the  causes  of 

injury. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  did  not  exercise  due  and 
reasonable  care  in  attempting  to  get  on  the  car  on  the 
evening  of  the  accident  and  that  her  negligence  in  this 
respect  contributed  to  and  was  one  of  the  causes  of  the 
accident,  then  even  although  the  defendant  or  its  agents 
or  employes  may  have  been  negligent  in  the  running  of 


SURETYSHIP.  391 

the  car,  yet  the  plaintiff  is  not  entitled  to  recover  and  the 
jury  should  find  a  verdict  for  the  defendant.  Normile  v. 
Traction  Co.,  57  W.  Va.  132. 

i.    Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  in  the  exercise  of  reasonable  care  in 
attempting  to  get  on  the  car  on  the  evening  of  the  ac- 
cident, it  was  the  duty  of  -  -  at  the  same  time  when 
she  placed  her  right  foot  upon  the  step  of  the  car  to 
take  hold  of  one  of  the  rails,  and  that  because  she  had 
her  arms  and  hands  otherwise  engaged  she  did  not  do 
so  and  that  it  was  negligent  on  her  part  not  to  do  so  and 
that  this  negligence  on  her  part  contributed  to  and  was 
one  of  the  causes  of  the  accident,  then  even  although 
the  jury  should  also  find  from  the  evidence  that  the  de- 
fendant or  its  employes  were  negligent  the  plaintiffs  are 
not  entitled  to  recover  and  the  jury  should  find  a  verdict 
for  the  defendant.  Normile  v.  Traction  Co.,  57  W.  Va. 
132. 


CHAPTER  65. 

SURETYSHIP. 

a.    When  payee  may  elect  to  hold  persons  endorsing  on 

back  of  note  as  original  promissors,  or  endorsers. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  at  the  time  the  note  in  question  was  de- 
livered to  the  plaintiff,  that  it  was  made  payable  to  him, 

was   signed   by  and   had   written   on   the   back 

the  name  of  -  -  and  -  — ,  that  then  the  said 
plaintiff  is  entitled  to  hold  them  as  joint  makers,  and 
if  it  is  shown  by  the  evidence  that  said and 


392  SURFACE  WATER. 

signed  their  names  on  the  back  of  said  note  at  the  time 
it  was  made  as  security  for  the  maker  and  for  his  ac- 
commodation to  give  him  credit  with  the  payee  such 
proof  does  not  alter  the  right  of  the  payee  to  hold  them 
bound  as  original  promissors  or  as  guarantors  or  as  en- 
dorsers as  he  may  elect,  but  strengthens  his  prima  facie 
right  to  elect.  Parsons  v.  Harrold,  46  W.  Va.  127. 


CHAPTER  66. 
SURFACE  WATER. 

a.  Liability  of  municipal  corporation  for  casting  sur- 

face water  upon  the  property  of  an  individual. 

b.  Drains    for   cellars  —  Municipal   corporations    not 

required  to  furnish. 

c.  Same — Raising  grade  of  streets. 

d.  Same — Injuries  resulting  from  other  causes. 

a.  Liability  of  a  municipal  corporation  for  casting  sur- 

face water  upon  the  property  of  an  individual. 
The  court  instructs  the  jury  that  in  disposing  of  sur- 
ace  water,   a  municipal   corporation   has  no   right,   by 
any  means  whatever,  to  collect  and  cast  the  same  upon 
the  property  of  an  individual.    Clay  v.  City  of  St.  Albans, 
43  W.  Va.  546. 

b.  Drains  for  cellars — Municipal  corporations  not  re- 

quired to  furnish. 

The  court  instructs  the  jury  that  the  law  does  not  re- 
quire the  city  of  -    to  furnish   a  drain  or  sewer 

to  carry  water  away  from  the  cellar  on  the  premises  in 
the  plaintiff's  declaration  described,  or  away  from  said 
premises.  Jordan  v.  City  of  Benwood,  42  W.  Va.  322. 


TELEGRAPH  AND  TELEPHONE  COMPANIES.   393 

c.  Same — Raising  grade  of  streets. 

The  court  instructs  the  jury  that  the  fact  that  the 

city  of  —      -  raised  the  grade  of street  and  of 

alley ,  so  as  to  prevent  water  flowing  from  the  cellar 

oni  the  premises  in  the  plaintiff's  declaration  described, 
or  away  from  said  premises,  upon  either  said  street  or 
said  alley,  will  not  of  itself  entitled  the  plaintiff  to  re- 
cover damages  in  this  action.  Jordan  v.  City  of  Ben- 
wood,  42  W.  Va.  322. 

d.  Same — Injuries  resulting  from  other  causes. 

The  court  instructs  the  jury  that  if  they  believe  from 

the  evidence  that  the  city  of since ,  18 — , 

and  before  the  bringing  of  this  suit,  has  damaged  the 
premises  described  in  the  plaintiff's  declaration  other- 
wise than  by  preventing  the  water  from  flowing  there- 
from upon  -  -  street  or  upon  alley  ,  their  ver- 
dict must  be  for  the  defendant.  Jordan  v.  City  of  Ben- 
wood,  42  W.  Va.  322. 


CHAPTER  67. 
TELEGRAPH  AND  TELEPHONE  COMPANIES. 

I.      TELEGRAPH    COMPANIES. 
II.      TELEPHONE   COMPANIES. 

I.      TELEGRAPH   COMPANIES. 

a.  Rules  of  companies — Reasonable  rules. 

b.  Delay  in  transmitting  and  delivering  messages. 

c.  Same — Repeating  messages. 

d.  Same — Liability  of  telegraph  company  for  profits 

arising  from  sales. 

a.    Rules  of  telegraph  companies — Reasonable  rules. 
The  court  instructs  the  jury  that  if  they  believe  from 


394    TELEGRAPH  AND  TELEPHONE  COMPANIES. 

the  evidence  that  the  -  -  telegraph  office  at  -  — , 
had  a  rule  that  messages  would  not  be  received  or  de- 
livered after  9  o'clock  in  the  evening  and  before  8  o'clock 
in  the  morning,  then  that  was  a  reasonable  rule,  and  the 
plaintiff  cannot  recover  any  damages  in  this  case  for  the 
failure  of  the  defendant  to  deliver  it  before  8  o'clock  in 
the  morning  of  -  — ,  -  — ,  although  it  may  have 
come  to  the  -  -  office  at  1  o'clock  A.  M.,  of  said 
— ,  -  — .  Davis  v.  Telegraph  Co,  46  W.  Va.  50. 

> 

b.  Delay  in  transmitting  and  delivering  messages. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  -  of  -  -  sent  the  plaintiff  the 
telegram  offered  in  evidence  dated  -  — ,  -  — ,  ask- 
ing for  quotation  of  prices  on  the  lunmber  mentioned  in 
said  telegram,  and  that  the  plaintiff  prepared  and  de- 
livered to  defendant's  operator  at  -  -  station,  the  re- 
ply to  said  telegram  which  has  been  offered  in  evidence 
dated  -  — ,  and  that  through  the  neglect  of 

defendant  said  reply  was  never  delivered  to  said  -  — , 
and  even  if  the  jury  further  believe  that  in  case  said 
reply  had  been  delivered  and  said  -  -  had  ordered 
said  lumber  at  the  prices  quoted  in  said  reply  and  plain- 
tiff had  delivered  said  lumber  to  -  — ,  in  pursuance 
to  said  order  the  plaintiff  would  have  made  a  profit  of 

I ,    per   thousand    feet   on*   said    lumber,    still    such 

profits  cannot  be  allowed  by  the  jury  in  favor  of  the 
plaintiff  in  making  up  their  verdict  in  this  case.  Beatty 
Lumber  Co.  v.  W.  U.  Telegraph  Co.,  52  W.  Va,  420. 

c.  Same — Repeating  messages. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  did  not  request  the  opera- 
tor of  defendant,  to  whom  the  message  to  —  — ,  which 
has  been  offered  in  evidence,  was  delivered,  to  have  said 
message  repeated,  and  did  not  pay  or  offer  to  pay  said 


TELEGRAPH  AND  TELEPHONE  COMPANIES.    :>,!)-> 

operator  the  regular  additional  charge  for  repeated  mess- 
ages as  prescribed  by  the  terms  on  the  back  of  said  mess- 
age, then  the  defendant  is  not  liable  to  the  plaintiff  for 
any  damages  for  the  non-delivery  of  said  message  beyond 
the  amount  received  for  sending  the  same.  Beattii 
Lumber  Co.  v.  W.  U.  Telegraph  Co.,  52  W.  Va.  420. 

d.    Same  —  Liability  of  telegraph  company  for  profits 

arising  from  sales. 

The  court  instructs  the  jury  that  the  defendant  is  not 
liable  to  plaintiff  for  any  profits  which  plaintiff  would 
have  made  out  of  the  proposed  sale  of  the  lumber  in 
question  to  -  — ,  if  they  believe  from  the  evidence  that 
no  contract  was  in  fact  made  with  said  -  -  for  sale  of 
said  lumber.  Beatty  Lumber  Co.  v.  W.  U.  Telegraph  Co., 
52  W.  Va.  420. 

II.      TELEPHONE  COMPANIES. 

a.  Duty  of  telephone  company  as  to  placing  and  main- 

taining wires. 

b.  Injuries    resulting    from    negligence    of    telephone 

company. 

c.  Care  and  caution  required  of  person  injured. 

a.    Duty  of  telephone  company  to  place,  support  and 

maintain  its  wires  by  proper  means  and  appliances. 

The  court  instructs  the  jury  that  the  defendants   in 

erecting  and  maintaining  the  telephone  line  mentioned 

in  the  declaration,   were  bound   to  place,   support  and 

maintain  its  wires  by  good,  reliable  and  efficient  means 

and  appliances,  so  as  not,  in  any  way.  to  interfere  with 

the  use  as  a  public  highway  of  the  road  leading  from 

the  town  of  -       — ,  in  -          -  county,  to  the  town  of 

— ,  in county,  and  if  said  defendants  failed  to 

provide  good,  reliable  and  efficient  means  and  appliances 


390          TELEGRAPH  AND  TELEPHONE  COMPANIES. 

to  support  aud  maintain  said  wire,  and  by  such  failure 
it  was  stretched  across  said  highway,  near  the  ground, 
and  interfered  with  the  plaintiff  in  the  use  of  said  high- 
way as  a  public  highway,  then  they  are  guilty  of  negli- 
gence. H annum  v.  Hill,  52  W.  Va.  176. 

b.  Injuries  resulting  from  negligence  of  telephone  com- 

pany. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  was  injured  by  being 
thrown  from  his  horse,  as  complained  of  in  the  declara- 
tion, and  that  the  negligence  of  the  defendants  was  the 
proximate  cause  of  the  injury  received  by  the  plaintiff, 
then  they  must  find  a  verdict  for  the  plaintiff.  H annum 
v.  Hill,  52  W.  Va.  176. 

c.  Care  and  caution  required  of  person  injured. 

The  court  instructs  the  jury  that  even  if  they  find 
that  the  plaintiff  was  injured  by  the  negligence  of  the 
defendants  as  alleged  in  his  declaration,  that  then  in 
ascertaining  the  amount  the  plaintiff  is  entitled  to  re- 
cover they  have  a  right  to  consider  whether  the  plaintiff  is 
entitled  to  recover,  they  have  a  right  to  consider  whether 
the  plaintiff  exercised  proper  care  and  medical  treatment 
of  himself  after  receiving  the  injury  complained  of,  and 
if  the  jury  further  believe  that  the  injury,  if  any,  received 
by  the  plaintiff  was  aggravated  by  his  lack  of  proper  care 
and  caution  on  the  part  of  the  plaintiff,  then  plaintiff 
is  not  entitled  to  recover  anything  for  such  aggravated 
injury.  JT annum  v.  Hill,  52  W.  Va.  178. 


TRESPASS— TROVER  AND  CONVERSION.  397 

CHAPTER  68. 
TRESPASS. 


a.  Possession  of  land — Necessity  for  plaintiff  to  prove. 
The  court  instructs  the  jury  that  in  order  for  the 
plaintiff  to  maintain  his  action  he  must  prove  that  at 
the  time  the  alleged  trespass  was  committed,  he  was 
either  in  the  actual  or  constructive  possession  of  the  land 
on  which  the  same  was  committed.  Storrs  v.  Feick,  24 
W.  Va.  608. 


CHAPTER  69. 
TROVER  AND  CONVERSION. 

a.  Right  of  title  to  and  right  to  possession  of  prop- 

erty. 

b.  Delivery  of  goods — Authority  to  dispose  of. 

a.  Right  of  title  to  and  right  to  possession  of  property. 
The  court  instructs  the  jury  that  the  plaintiff  has  no 

right  to  recover  in  this  action  unless  he  show  that  at 
the  time  this  suit  was  brought  he  had  the  right  of  prop- 
erty in  the  said  —  — ,  or  any  part  he  may  show  himself 
entitled  to,  and  also  that  he  had  the  right  to  the  posses- 
sion of  said  -  ,  or  part  thereof.  Haines  v.  Coch- 

rans,  26  W.  Va.  722. 

b.  Delivery  of  goods — Authority  to  dispose  of  goods. 
The  court  instructs  the  jury  that  if  they  find  from  the 

evidence  that  the  plaintiff  delivered,  or  caused  to  be  de- 


398  TURNPIKE  COMPANIES. 

livered  to  -  -  the  notes  sued  on,  with  authority  to 
dispose  of  the  same,  said  notes  or  the  money  for  them  to 
be  returned  to  the  plaintiff,  and  further  find  that  said 
-  sold  and  delivered  the  said  notes  to  the  defend- 
ant, then  the  jury  must  find  for  the  defendant;  and  that 
such  authority  might  be  either  expressed  or  implied. 
Carder  v.  B<wk,  34  W.  Va.  40. 


CHAPTER  70. 
TURNPIKE  COMPANIES. 

a.  Adverse  interests — Authority  of  county  court. 

b.  Same — Unauthorized  act  of  county  court. 

a.  Adverse  interests — Authority  of  county  court. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  interest  which  the  State  of  West 
Virginia  owned  in  said  turnpike  was  only  the  right  to 
hold  so  many  shares  of  stock  in  said  turnpike  company, 
then  chapter  39,  Code,  nor  any  section  under  it,  gave 
any  right  to  the  county  court  of  -  -  county  to  take 
possession,  without  the  consent  of  the  company,  of  said 
lot  in  controversy,  unless  the  same  had  been  condemned; 
and  if  the  jury  further  believe  from  the  evidence  that  the 
only  title  under  which  the  county  court,  through  its  agent, 
entered  upon  the  premises  was  the  order  or  orders  of  the 
county  court  taking  possession  of  said  turnpike,  then 
said  entry  was  unlawful  and  said  agent  was  a  trespasser. 
Moore  v.  Shoppert,  22  W.  Va.  285. 

b.  Same — Unauthorized  acts  of  county  court. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  at  the  time  of  said  entry  by  the  agent 


UNLAWFUL  ENTRY  AND  DETAINER.  399 

of  the  county  court,  the  said  turnpike  company  was  ac- 
tually managing  and  controlling  the  same  through  its 
officers  and  agents  under  the  provisions  of  its  charter, 
then  the  entry  by  the  agent  of  the  county  court  of  - 
county,  was  unlawful  and  a  trespass.  Moore  v.  Shoppert,. 
22  W.  Va.  285. 


CHAPTER  71. 
UNLAWFUL  ENTRY  AND  DETAINER. 

a.  Forcible  entry  and  detention  of  possession. 

b.  Same — Statute  of  limitations. 

c.  Same — Possession  under  lease — Question   of  title. 

d.  Same — Possession  under  grantor  —  Boundaries — 

Prior  possession. 

e.  Right  of  action  by  lessee — Abandonment  of  lease. 

f.  Abandonment  of  possession. 

g.  Same — Acts  and  declarations  of  defendant, 
h.     Deception  practiced  by  defendant. 

i.  Forfeiture  of  plaintiff's  title — Knowledge  of  by 
defendant — Agency. 

j.  Same — Forfeiture  of  land  for  non-payment  of  tax- 
es— When,  sale  does  not  forfeit  plaintiff's  rights. 

k.     Same  —  Disclaimer    by    defendant. 

1.     Within  what  time  action  must  be  brought. 

a.    Forcible  entry  and  detention  of  possession. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  made  a  forcible  entry 
upon  the  lands  described  in  the  writ,  and  that  he  de- 
tained the  possession  of  the  same  at  the  date  of  the 
issuing  of  this  writ,  then  the  verdict  should  be  for  the 
plaintiff,  unless  they  should  find  further,  that  the  de- 


400  UNLAWFUL  ENTRY  AND  DETAINER. 

fendant  had  been  in  possession  three  years  before  the 
bringing  of  this  suit.     Franklin  v.  Gcho,  30  W.  Va.  31. 

b.  Same — Statute  of  limitations. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  was  in  possession  of  the 
land  in  question,  and  that  the  defendant  adhered  upon 
the  same  and  forcibly  turned  the  plaintiff  out  of  the 
possession  and  kept  him  turned  out  of  the  possession  up 
to  the  time  of  the  bringing  of  this  suit,  then  you  will 
find  for  the  plaintiff,  unless  you  find  that  the  defendant 
has  been  in  the  possession  of  the  land  for  three  years 
before  the  date  of  the  summons  therein.  Franklin  v. 
Geho,  30  W.  Va.  31. 

c.  Same — Possession  under  a  lease — Question  of  title  not 

to  be  regarded. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff,  under  the  lease  made  to 
him  by  -  -  and  others,  entered  into  and  took  quiet 
and  peaceable  possession  of  the  premises  embraced  in 
said  lease,  claiming  the  same  thereunder  up  to  the 
boundaries  thereof,  and  that  the  defendants  unlawfully 
or  forcibly  entered  upon  his  said  possession  and  ousted 
him  from  the  same,  or  any  part  thereof,  within  three 
years  prior  to  the  institution  of  this  suit,  then  the  plain- 
tiff is  entitled  to  recover  the  same  in  this  action,  or  such 
part  thereof  as  he  was  ousted  of  without  regard  to  the 
question  of  title.  Moore  v.  Douglass,  14  W.  Va.  721. 

d.  Same  —  Possession  under  grantor  —  Consideration  of 

question  of  boundaries — Prior  possession  of  defend- 
ant. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  entered  into  and  took  pos- 
session of  his  lease,  claiming  the  same,  and  the  defend- 


UNLAWFUL  ENTRY  AND   DETAINER.  4QL 

ants  entered  upon  his  possession  and  ousted  him  from 
the  same,  or  any  part  thereof,  claiming  to  hold  the 
same  under  -  -  and  wife,  who  claimed  under  the 
deed  from  -  -  to  -  (the  wife),  then  if  they 

further  believe  that  the  boundaries  contained  in  said  deed 
do  not  cover  or  embrace  the  land  in  controversy,  or  any 
part  thereof,  and  that  they  did  not  hold  possession  for 
three  years  prior  to  the  institution  of  this  suit,  they  must 
find  for  the  plaintiff  for  so  much  of  said  lease  as  he  was 
ousted  from  by  them,  unless  they  further  believe  that 
— ,  or  those  holding  under  him,  had  peaceable  pos- 
session of  the  land  in  dispute  prior  to  the  possession  of 
the  plaintff.  Moore  v.  Douglass,  14  W.  Va.  721. 

e.  Right  of  action  by  lessee — Abandonment  of  lease  by 

plaintiff. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  leased  the  premises  men- 
tioned, and  that  his  term  had  not  expired,  and  that  he 
had  the  possession  thereof,  and  that  the  defendant,  dur- 
ing the  plaintiff's  term,  and  while  the  plaintiff  was  so  in 
possession  by  occupation  or  the  cultivation  of  the  land, 
leased  said  land  and  entered  upon  .said  premises  with- 
out the  consent  of  the  plaintiff,  then  the  jury  should 
find  for  the  plaintiff  and  ascertain  his  damages;  but  if 
the  jury,  on  the  other  hand,  believe  from  the  evidence 
that  the  plaintiff  had  so  rented,  and  that  his  term  had  not 
expired,  yet  that  the  plaintiff  had  abandoned  his  lease 
and  his  possession  of  the  said  land  and  premises,  and  that 
after  such  abandonment  by  the  plaintiff  of  his  lease  and 
possession,  the  defendant  rented  said  premises  and  en- 
tered thereon,  then  in  that  case  the  jury  should  find  for 
the  defendant.  Chancey  v.  Smith,  25  W.  Va,  406. 

f.  Abandonment  of  possession  by  defendant. 

The  court  instructs  the  jury  that  if  they  believe  from 


402  UNLAWFUL  ENTRY  AND  DETAINER. 

the  evidence  that  the  defendant  went  upon  the  land  in 
question  and  cut  and  hauled  away  grass,  and  attempted 
to  and  did,  at  three  several  times,  partly  erect  a  fence, 
and  that  after  warning  from  plaintiff  to  depart,  he  did 
not  return,  and  abandoned  possession  of  the  premises  in 
question,  and  did  not  detain  the  possession  thereof  at  the 
date  of  the  commencement  of  this  suit,  then  you  must 
find  for  the  defendant.  Franklin  v.  Oeho,  30  W.  Va. 
37. 

g.     Same — Consideration  of  acts  and  declarations  of  de- 
fendant. 

The  court  instructs  the  jury  that  no  claim  of  owner- 
ship of  the  property  or  of  intention  of  the  defendant  to 
hold  the  possession  thereof  made  on  about  the  - 
day  of  -  — ,  (about  one  month  before  the  bringing  of 
this  suit),  are  sufficient  to  enable  the  plaintiff  to  re- 
cover, if  the  jury  find  from  the  evidence  that  the  de- 
fendant did  not  in  fact  withhold  the  possession  of  the 
premises  at  the  date  of  the  commencement  of  this  action ; 
but  the  jury  may  take  into  consideration  a  claim  of  own- 
ership made  by  the  defendant  and  his  declarations  as 
to  his  possession  of  the  same  in  connection  with  other 
evidence  in  determining  whether  in  fact  he  was  in.  posses- 
sion of  the  premises  at  the  commencement  of  this  action. 
Franklin  v.  Gcho,  30  W.  Ya.  38. 

h.     Deception  practiced  by  defendant  in  order  to  main- 
tain possession. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant  practiced  a  system  of 
deceit  towards  the  plaintiff,  or  his  agent,  with  regard 
to  the  lands  in  question,  acknowledging  his  title,  while 
acknowledging  that  of  an  adverse  claimant,  disclaiming 
his  title  to  one  agent,  and  acknowledging  it  to  his  suc- 
cessors and  to  other  persons,  for  the  purpose  of  maintain- 


UNLAWFUL  ENTRY  AND   DETAINER.  403 

ing  his  possession,  and  without  taking  the  risk  of  an 
open,  consistent,  and  continuous  disclaimer  and  adverse 
claim,  they  are  to  regard  his  disclaimer  as  having  no 
effect  whatever.  Voss  v.  King,  38  W.  Va.  610. 

i.  Forfeiture  of  plaintiff's  title — Knowledge  of  defend- 
ant as  to — Defendant  as  agent  of  plaintiff — Dis- 
claimer by  defendant. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  defendant,  having  learned  of  the 
forfeiture  of  plaintiff's  title  several  years  before  the  ex- 
piring of  his  lease,  after  such  information,  acknowledged 
himself  to  be  the  agent  of  plaintiff,  as  his  tenant,  they  are 
not  to  regard  such  forfeitures  as  having  any  effect  on 
plaintiff's  title,  unless  they  believe  that  subsequently  to 
all  such  acknowledgments  he  made  an  open,  consistent, 
and  continuous  disclaimer  and  adverse  claim.  Voss  v. 
King,  38  W.  Va.  609. 

j.  Same — Forfeiture  of  lands  for  non-payment  of  taxes 
— When  sale  for  taxes  does  not  forfeit  plaintiff's 
right. 

The  court  instructs  the  jury  that  if,  from  the  evidence, 
they  do  not  believe  that  the  defendant  disclaimed  holding 
under  the  plaintiff  in  or  about  18 — ,  and  do  not  believe 
from  the  evidence  that  plaintiff's  title  was  subsequently 
to  the  running  out  of  the  lease  destroyed,  so  as  to  put 
it  out  of  the  power  of  the  plaintiff  to  recover  it  by  re- 
demption, they  are  not  to  regard  the  sales  by  the  state  as 
excusing  the  defendant  from  restoring  the  possession  to 
the  plaintiff.  Voss  v.  King,  38  W.  Va.  609. 

k.     Same — Disclaimer  by  defendant. 

The  court  instructs  the  jury  that  if  they  do  not  believe 
that  the  defendant  disclaimed  holding  under  the  plaintiff 
in  18 — ,  or  thereabouts,  they  are  to  disregard  the  evidence 


404  WATER  AND  WATER  COURSES. 

tending  to  show  that  the  plaintiff's  title  was  forfeited. 
Vos8  v.  King,  38  W.  Va.  610. 

1.    Within  what  time  action  must  be  brought. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  land  in  controversy  has  been  un- 
lawfully detained  from  the  plaintiff,  unless  it  was  unlaw- 
fully detained  for  more  than  three  years  before  suing  out 
the  summons,  then  they  must  find  for  the  plaintiff.  Laic- 
son  v.  Dalton,  18  W.  Va.  768. 

[NOTE. — See  Ch.  50,  Sec.  21,  Code,  for  limitation  of  the 
action  before  justices.] 


CHAPTER  72. 
WATER  AND  WATER  COURSES. 

CHANGING  COURSE  OF   STREAM. 

a.  Liability  for  changing  the  natural  course  of  stream. 

b.  Rights  of  defendant  to  property  on  his  own  ground 

—Usual  condition  of  stream. 

c.  Same. 

a.  Liability  for  changing  the  natural  course  of  a  stream. 
The  court  instructs  the  jury  that  in  repairing,  main- 
taining or  replacing  the  bank  of  the  run  next  his  coke- 
ovens,  the  defendant  has  no  right  to  change  or  narrow  the 
natural  course  of  the  run  so  as  to  cause  it  to  encroach 
upon  the  property  of  the  plaintiff,  or  to  wash  away  his 
ground;  and  if  the  jury  believe  from  the  evidence  that 
in  maintaining,  repairing  or  replacing  said  bank,  he  has 
so  narrowed  or  changed  the  natural  course  of  the  said 


WATER  AND  WATER  COURSES.  405 

run,  he  is  liable  for  any  damages  thereby   occasioned. 
Hargreave  v.  Kimberly,  26  W.  Va.  791. 

b.  Rights  of  defendant  when  property  on  his  own  ground 

— Usual  condition  of  stream. 

The  court  instructs  the  jury  that  while  the  defendant, 
the  run  being  on  his  land,  had  the  right  to  deal  with  it 
as  he  saw  fit,  so  that  he  did  not  cause  the  run,  in  its 
usual  condition,  to  encroach  upon  the  plaintiff's  prop- 
erty, yet  he  had  no  right,  by  any  constructions  or  obstruc- 
tions, to  divert  the  run  from  its  natural  course  so  as  to 
cause  it,  in  its  usual  condition,  to  encroach  upon  the 
property  of  the  plaintiff,  or  to  wash  away  -his  ground, 
and  by  the  usual  condition  of  the  run  is  meant  as  well 
as  its  condition  at  times  of  ordinary  and  usual  floods  and 
freshets  as  its  condition  in  dry  weather.  Hwgreaves  v. 

Kimberly,  26  W.  Va.  791. 

/ 

c.  Same. 

The  court  instructs  the  jury  that  the  run  being  wholly 
on  defendant's  ground  he  had  the  right  to  deal  with  it  in 
any  way  he  saw  fit  so  that  he  did  raot  cause  the  run,  in 
its  usual  condition,  to  encroach  upon  the  plaintiff's  prop- 
erty. The  defendant  is  not  liable  to  plaintiff  for  any 
washing,  slipping  or  other  injury  to  his  property  result- 
ing from  an  extraordinary  and  unusual  condition  of  the 
run,  unless  such  damage  to  the  plaintiff's  property  was 
rendered  greater  by  the  act  of  the  defendant.  Har- 
greaves  v.  Kimberly,  26  W.  Va.  792. 


4IM5  WILLS. 

CHAPTER  73. 
WILLS. 

a.  Legal  capacity,  when  shown,  validity  of  will  can- 

not be  impeached. 

b.  Less  capacity  required  to  make  a  will  than  to  make 

a  deed. 

c.  Old  age  of  itself  not  sufficient  evidence  of  inca- 

pacity. 

d.  Time   to  consider  as   to   the   competency   of   tes- 

tator. 

e.  Highest  quality  of  mind  not  required  of  testator. 

f.  Bequests  to  others   than   relatives — Consideration 

of. 

g.  Not  necessary  that  testator  name  all  his  children 

in  his  will, 
h.     Favoritism   or   partiality   of   testator   toward   his 

children. 

i.    Fickleness  of  testator  as  concerns  his  children, 
j.     Fraud  or  undue  influence  in  procurement  of  will — 

Burden  of  proof, 
k.     Same. 

1.     Same — Coercion  of  testator. 
m.    Understanding  of  testator  as  to   beneficiaries  of 

will, 
n.     Attestation    of    will — Necessity    for — Mental    and 

physical  ability  of  testator  to  dissent  from  the 

signing  and  attestation  of  will. 

o.     Same — While  attesting  witnesses  engaged  in  sign- 
ing will, 
p.     Same, 
q.     Manner  of  placing  signature  of  testator  to  will — 

Subsequent  acknowledgment  and  ratification  of 

signature  by  testator. 


WILLS.  407 

r.     Same — Recognition  by  testator  in  presence  of  attest- 
ing witnesses  of  signature  to  will. 

s.     Same — Testamentary  capacity  of  testator. 

t.     Manner  of  spelling  testator's  name. 

u.     Assisting  testator  in  placing  his  signature  to  will 
— Ratification  of  will. 

v.     Same — Testator's  knowledge  of  contents  of  will — 
Capacity  to  make  dissent  known. 

w.     Same. 

x.     Same. 

y.     Attesting  witnesses — Witnesses  present  at  execu- 
tion of  will. 

z.     Same — As  to  weight  of  evidence  of  physician  who 

attended  testator  during  his  last  illness, 
zl.     Same. 
z2.     Devisees  —  Opportunities   of   for   knowing   mental 

condition  of  testator. 

z3.     Expert  witnesses — How  testimony  regarded. 
z4.     When  opinion  of  experts  can  be  given  on  testimony 
already  in  the  case. 

a.  Legal  capacity  when  shown  validity  of  will  cannot 

be  impeached. 

The  court  instructs  the  jury  that  where  legal  capacity 
is  shown,  the  validity  of  the  will  cannot  be  impeached, 
however  unreasonable,  imprudent  or  unaccountable  it 
may  seem  to  the  jury  or  others,  if  the  testator  acted 
freely.  Nicholas  v.  Kerslmer,  20  W.  Va.  255. 

b.  Less  capacity  required  to  make  a  will  than  to  make 

a  deed. 

The  court  instructs  the  jury  that  it  requires  less  ca- 
pacity to  make  a  will  than  it  does  to  make  a  deed. 
Nicholas  v.  Kershner,  20  W.  Va.  255. 

c.  Old  age  of  itself  not  sufficient  evidence  of  incapacity. 
The  court  instructs  the  jury  that  old  age  is  not  of  it- 


408  WILLS. 

self  sufficient  evidence  of  incapacity  to  make  a  will. 
\  n-holas  v.  Kershner,  20  W.  Va.  L'.V>. 

d.  The  time  to  consider  as  to  competency  of  testator. 
The  court  instructs  the  jury  that  the  time  to  be  looked 

to  by  the  jury  in  determining  the  competency  of  the  testa- 
tor to  make  a  will  is  the  time  when  the  will  was  executed. 
Nicholas  v.  Kershner,  20  W.  Va.  255. 

e.  Highest  quality  of  mind  not  required  of  testator  —  Tes- 

tator must  possess  sufficient  mind  to  know  objects 
of  bounty  and  comprehend  disposition  of  property. 
The  court  instructs  the  jury  that  in  order  for  a  man 
to  make  a  valid  will,  it  is  not  necessary  that  he  should 
possess  the  highest  qualities  of  mind,  nor  that  he  should 
have  the  same  strength  of  mind  that  he  may  formerly 
have  had;  that  the  mind  may  be  in  some  degree  debili- 
tated, the  memory  may  be  enfeebled;  he  may  possess 
weakness  of  understanding,  eccentricity  of  character,  and 
even  want  of  capacity  to  transact  many  of  the  ordinary 
business-affairs  of  life;  but  is  sufficient,  if  he  possess 
mind  enough  to  understand  the  nature  of  his  property, 
to  know  the  object  of  his  bounty  and  to  comprehend  the 
disposition  of  his  property  in  its  simplest  forms.  Coff- 
v.  Hcdrick,  32  W.  Va.  132. 


f.     Bequests  to  others  than  relatives  —  Consideration  of. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  there  is  a-  doubt  of  the  competency  of 
the  said  -  —  ,  deceased,  to  make  a  will,  on  the  — 
day  of  -  —  ,  and  that  he  had,  at  that  time,  relations 
living,  of  whom  he  knew,  (whether  nephews  or  nieces), 
and  that  by  the  paper  writing  of  -  —  ,  -  —  ,  pur- 
porting to  be  his  last  will  and  testament,  he  devised  and 
bequeathed  all  his  property,  real  and  personal,  to  others 
than  his  relations,  then  the  fact  that  he  made  such 


WILLS.  409 

devise     and  bequest,  is  proper  to  be  considered  by  the 
jury.     Ward  v.  Brown,  53  W.  Va.  265. 

g.    Not  necessary  that  the  testator  name  all  his  children 

in  will. 

The  court  instructs  the  jury  that  in  order  to  make  a 
valid  will,  it  is  not  necessary  that  the  testator  should 
name  all  his  children  in  it  or  give  all  of  them  a  portion 
of  his  estate.  If  the  jury  believe  he  was  mentally  capa- 
ble of  understanding  the  disposition  he  was  making  of 
his  property,  and  that  he  acted  freely,  then  it  is  imma- 
terial to  whom  he  gives  his  property,  whether  all  to  one 
of  his  children  or  to  strangers.  If  he  has  a  disposing 
mind  he  has  the  right  to  do  as  he  pleases  with  his  prop- 
erty. Nicholas  v.  Kershner,  20  W.  Va.  257. 

h.    Favoritism  or  partiality  of  testator  toward  his  chil- 
dren. 

The  court  instructs  the  jury  that  although  they  may 
believe  from  the  evidence  that  the  testator  was  influenced 
by  feelings  of  resentment  and  dislike  towards  a  part  of 
his  children  and  by  feelings  of  affection  and  attachment 
towards  others,  and  that  these  influenced  him  to  give  his 
whole  estate  to  the  one  part  and  nothing  to  the  others, 
still  this  is  not  of  itself  sufficient  to  make  the  will  in- 
valid. Nicholas  v.  Kershner,  20  W.  Va.  257. 

i.    Fickleness  of  testator  as  concerns  his  children. 

• 

The  court  instructs  the  jury  that  although  they  may 
believe  from  the  evidence  that  the  testator  was  fickle  and 
inconstant,  and  that  at  one  time  he  favored  one  or 
more  of  his  children,  and  at  other  times  disliked  those 
and  favored  others;  still  if  they  believe  he  acted  freely 
and  had  the  capacity  to  understand  what  property  he 
had,  and  to  whom  he  was  giving  it,  the  will  is  not  in- 
valid on  that  account;  and  if  they  believe  his  will  was 


410  WILLS. 

caused  by  the  extreme  kindness  and  attention  of  the  de- 
visees, that  will  not  constitute  undue  influence,  which 
will  invalidate  the  will,  yicholas  v.  Kershner,  20  W.  Va. 
257. 

j.    Fraud  or  undue  influence  in  procurement  of  will — 

Burden  of  proof. 

Fraud  or  undue  influence  in  the  procurement  of  a  will  is 
not  to  be  presumed,  but  the  burden  of  proof  lies  upon  the 
party  who  alleges  it,  to  establish  the  same  by  evidence. 
It  is  not  required  that  there  be  direct  and  positive  proof 
of  such  fraud  or  undue  influence,  but  it  may  be  deduced 
from  the  established  facts  and  circumstances  of  a  given 
case.  At  the  same  time  it  will  not  be  inferred  from 
opportunity  and  interest  merely  on  the  part  of  those  to 
whom  the  fraud  or  undue  influence  may  be  attributed. 
McMechen  v.  McMeclicn,  17  W.  Va.  702. 

k.    Same. 

The  jury  is  instructed  that  if  they  are  satisfied  from 
the  whole  evidence  in  this  case  that  the  paper  writing 
of  -  — ,  18 — ,  here  offered  for  probate  as  the 

will  of  -  — ,  deceased,  was  made  by  him  by  reason 
of  an  undue  influence  exercised  upon  his  mind  and  will 
and  would  not  have  been  made  by  him  but  for  such 
influence,  then  they  should  find  that  the  same  is  not 
his  last  will.  McMecJien  v.  McMechen,  17  W.  Va.  711. 

1.    Same — Coercio'n  of  the  testator. 

The  court  instructs  the  jury  that  to  constitute  undue 
influence  and  make  void,  by  reason  thereof,  a  paper  writ- 
ing executed  as  a  will,  it  is  not  necessary  that  the  party 
making  such  paper  writing  should  be  controlled  by  any 
force,  coercion  or  persuasion  exercised  at  the  time  of  the 
signing  of  said  paper;  it  is  all-sufficient  to  avoid  the 
paper  if,  upon  the  evidence,  the  jury  find  by  reason  there- 


WILLS.  411 

of,  that  the  disposition  of  the  estate  by  the  writing  is 
not  the  disposition  which  the  party  desired  and  intended 
to  make  of  the  same.  Ferrell  v.  Forney,  4  W.  Va.  737. 

m.    Understanding  of  testator  as  to  beneficiaries  of  will. 
If  the  jury  believe  from  the  evidence  that  the  testatrix, 
— ,   understood   or  believed   that  the  paper 
writing  contained  a  provision  for  the  use  or  benefit  of 
her  husband,  -       — ,  or  his  children,  or  both  the  hus- 
band and  the  children,  and  such  provision  is  not  con- 
tained in  said  paper  writing,  it  is  their  duty  to  consider 
and  weigh   such   evidence   in   ascertaining   whether   the 

paper   writing   is,    or   is    not,    the   last   will   of    • — 

— .    Ferrell  v.  Forney,  4  W.  Va.  738. 

n.  Attestation  of  will  necessity  for — Mental  and  physical 
ability  of  testator  to  dissent  from  and  prevent  the 
signing  and  attestation  of  will. 

The  court  instructs  the  jury  that  the  attesta- 
tion of  the  paper  writing  dated  -  — ,  -  — ,  purport- 
ing to  be  the  last  will  and  testament  of  -  — ,  deceased, 
given  in  evidence  in  this  case,  is  absolutely  necessary 
to  its  execution;  and  if  the  jury  believe  from  the  evi- 
dence that  before  this  important  part  of  the  execution 
of  said  paper  writing,  and  while  it  was  duly  done,  said 
testator,  by  reason  of  unconsciousness,  or  mental  or 
physical  inability  was  unable  to  dissent  from  the  attes- 
tation, and  to  arrest  and  prevent  the  same,  by  indicating 
his  dissent  or  disapproval,  if  he  had  desired  to  do  so,  the 
said  paper  writing  is  not  valid  as  a  will.  Ward  v. 
Brown,  53  W.  Va.  265. 

o.     Same — While  attesting  witnesses  engaged  in  signing 

will. 

The  court  instructs  the  jury  that  if  the  jury  believe 
from  the  evidence  that  at  the  time  the  attesting  witnesses 


412  WILLS. 

were  requested  to  sign  said  paper  and  at  the  time  they 
were  engaged  in  signing  the  same,  the  said  —  -  did 
not  possess  sufficient  consciousness  to  hear  and  under- 
stand and  assent  to  said  request  or  to  dissent  from 
the  same  if  he  had  wished,  or  that  he  did  not  possess  suffi- 
cient consciousness  to  recognize  and  understand  what  said 
attesting  witnesses  were  doing,  and  to  assent  to  their 
acts,  or  that  he  did  not  possess  sufficient  consciousness 
and  sufficient  physical  strength  to  have  dissented  from 
the  said  attestation  and  to  have  arrested  and  prevented 
the  same  by  indicating  his  dissent  or  disapproval  if  he 
had  desired  to  do  so,  then  the  jury  must  find  that  the  said 
paper  is  not^the  will  of  the  said  -  — .  McMechen  v. 
McUechen,  17  W.  Va.  713. 

p.    Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -  -  signed  the  name  of  the  testator 
to  the  paper  writing  offered  in  evidence  as  his  last  will 
and  testament  dated  -  — ,  -  — ,  and  that  at  the 
time  the  attesting  witnesses  were  engaged  in  signing  the 
same  the  said  testator  did  not  possess  sufficient  con- 
sciousness to  recognize  and  understand  what  said  attest- 
ing witnesses  were  doing  and  to  assent  to  their  acts,  or 
that  he  did  not  possess  sufficient  consciousness  and  suffi- 
cient physical  strength  to  have  dissented  from  the  said 
attestation,  and  to  have  arrested  and  prevented  the  same 
by  indicating  his  dissent  or  disapproval,  if  he  had  desired 
to  do  so,  then  the  jury  must  find  that  the  said  paper  is 
not  the  will  of  the  said  testator.  Ward  v.  Brown.  53  W. 
Va.  264. 

q.    Manner  of  placing  name  of  testator  to  will — Subse- 
quent acknowledgment  and  ratification   of  signa- 
ture by  testator. 
The  court  instructs  the  jury  that  if  the  jury  believe 


WILLS.  413 

from  the  evidence  that  the  paper  writing  of  -  — , 

18 — ,  here  offered  for  probate,  was  signed  by  - 
himself,  or  by  some  other  person  in  his  presence  and  by 
his  direction,  in  the  presence  of  the  attesting  witnesses 
to  said  paper  writing,  and  he  was  then  of  sound  mind, 
and  was  then  and  there  shortly  afterwards  acknowl- 
edged by  said  -  —  before  said  attesting  witnesses  as 
his  last  will,  and  that  the  said  paper-writing  shortly 
after  such  acknowledgment  was  signed  by  the  attesting 
witnesses  in  his  presence,  and  that  the  testator,  at  the 
time  said  attesting  witnesses  signed  the  same,  was  of 
sound  mind  and  physically  able  to  assent  to  or  dissent 
from  such  attestation,  said  acknowledgment  made  as 
aforesaid  is  not  required  by  law  and  does  not  add  to  the 
legal  validity  of  the  will;  but  the  jury  in  considering 

the  state  of  mind  of  the  said  should  consider  all 

the  evidence  in  the  case  bearing  upon  that  subject.    Mc- 
Mechen  v.  MoMechen,  17  W.  Va.  710. 


r.    Same — Recognition  by  testator  in  presence  of  attest- 
ing witnesses  of  signature  to  will. 

The  court  instructs  the  jury  that  if  they  are  satisfied 
from  the  evidence  that  the  testator,  —  — ,  knew  his 
name  was  signed  to  the  will,  and  that  he  acknowledged 
it  in  the  presence  of  the  two  attesting  witnesses,  both  in 
his  presence  at  the  time,  then  it  is  immaterial  how  the 
signature  of  the  testator  was  placed  upon  said  will, 
whether  by  one  of  the  witnesses,  by  the  testator  or  by 
both  the  witness  and  testator.  The  material  matter  for 
the  jury  to  determine  is,  whether  the  said  -  —  knew 
his  name  was  attached  to  the  will,  and  that  he  recognized 
it  as  his  will  and  signature  in  the  presence  of  the  at- 
testing witnesses,  both  in  his  presence  at  the  time  of 
such  acknowledgment.  Nicholas  v.  Kershner,  20  W.  Va. 
258. 


414  WILLS. 

s.    Same — Testamentary  capacity  of  testator. 

The  court  instructs  the  jury  that  it  is  not  necessary 
that  the  subscribing  witnesses  to  a  will  should  see  the 
testator  sign,  or  that  he  should  acknowledge  to  them 
the  subscription  of  his  name  to  be  his  signature,  or  even 
that  the  instrument  is  his  will.  If  the  testamentary  ca- 
pacity exist  at  the  time,  it  is  enough  that  he  should  ac- 
knowledge in  their  presence  that  the  act  was  his,  he  hav- 
ing at  the  time  knowledge  of  the  contents  of  the  instru- 
ment and  the  design  that  it  should  be  the  testamentary 
disposition  of  his  property.  If  the  jury  believe  from 
the  evidence  that  the  paper  writing  here  offered  for 
probate  was  subscribed  by  himself,  and  that 

such  acknowledgment  of  said  paper  writing  was  made 
by  him,  the  jury  are  instructed  that  such  an  acknowledg- 
ment is  a  recognition  and  ratification  of  his  signature. 
If  the  jury  believe  from  the  evidence  that  the  name  of 
-  was  subscribed  to  said  paper  writing  by  another, 
and  that  such  an  acknowledgment  of  said  paper  writing 
was  made  by  said  -  — ,  the  jury  are  instructed  that 
such  acknowledgment  is  a  recognition  and  ratification 
of  the  signature  as  having  been  made  for  him  in  his 
presence  and  by  his  directions,  and  that,  on  that  state  of 
facts,  it  is  wholly  immaterial  that  said  signature  was 
written  in  full  instead  of  being  abbreviated  in  the  usual 
manner  in  which  said  -  -  may  have  been  in  the  habit 
of  writing  it. 

But  in  considering  the  question  of  ratification  the 
jury  are  to  consider  all  the  evidence  in  the  cause  relating 
thereto,  including  the  mode  of  spelling  the  signature. 
McMcchcn  v.  McHechen.  17  W.  Va.  708. 

t.     Same — Manner  of  spelling  testator's  name. 

The  court  instructs  the  jury  that  if,  after  the  writing 
offered  for  probate  was  written  by  the  draftsman,  the 
signature  " —  — ,"  which  appears  at  the  end  of  said 


WILLS.  415 

writing,  was  put  there  by  the  said  -  -  himself  or  by 
another  person  in  the  presence  of  the  said  -  — ,  and 
with  his  knowledge  and  assent,  and  the  intention  on  his 
part  that  the  said  writing  should  be  his  will,  then  it  is 
wholly  immaterial  that  said  signature  was  written  in 
full  instead  of  being  abbreviated  in  the  usual  manner 
in  which  he  may  have  been  in  the  habit  of  writing  it. 
But  it  is  proper  for  the  jury  to  consider  all  the  evi- 
dence, including  the  mode  of  spelling  the  same,  in  de- 
termining whether  it  was  intended  by  the  testator  to  be 
his  signature  to  said  paper.  McMechen  v.  McMechen, 
17  W.  Va.  706. 

u.  Assisting  testator  in  placing  his  signature  to  will — 
Mental  and  physical  capacity  of  testator  to  dissent 
from  having  his  signature  made  to  will — Ratifica- 
tion of  will. 

The  court  instructs  the  jury  that  if  they  shall  find 
from  the  evidence  that  the  time  of  the  execution  of  the 

paper  writing  here  offered  for  probate  as 's  will,  that 

the  testator  was  not  able  to  write  his  own  name,  and 
that  -  -  did  without  the  testator's  request  or  con- 
sent take  hold  of  the  testator's  hand  and  so  write  the 
testator's  name  thereto,  that  such  signing  of  the  tes- 
tator's name  to  said  paper  is  not  in  law,  without  more,  a 
sufficient  signing  to  make  the  same  the  true  last  will 
of  -  -  deceased;  but  if  the  said  -  -  afterwards 
acknowledged  the  said  paper  as  his  will,  such  acknowl- 
edgment is  a  ratification  of  such  signature.  McMechen 
v.  McMechen,  17  W.  Ya.  711. 

v.     Same — Testator's  knowledge   of   contents   of  will — 

Capacity  to  make  dissent  known. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence   that  -  permitted  -  -   to 

steady-  or  guide  his  hand  while  making  his  signature  to 


416  WILLS. 

the  paper  offered  for  probate,  or  even  to  make  such  Big- 
nature  for  him,  the  said  -  -  knowing  at  the  time  the 
contents  of  said  paper,  and  what  said  -  -  was  so  do- 
ing, and  the  purpose  thereof,  and  being  mentally  and 
physically  able  to  make  known  by  words  or  signs  his 
dissent  thereto  had  he  wished  to  do  so,  such  permission 
would  be  equivalent  to  a  direction  by  said  -  -  to 
said  -  -  to  make  said  signature,  or  assist  in  mak- 
ing the  same  as  aforesaid.  McMechen  v.  McMechen,  17 
W.  Va.  707. 

w.    Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  after  the  paper  offered  for  probate  was 
written  by  the  draftsman,  -  -  took  hold  of  the  hand 

of  -  -  and  therewith  wrote  the  signature  "— 
appearing  at  the  end  of  the  paper,  the  signature  so  made 
is  in  law  a  sufficient  signing  of  the  paper  by  the  said 
-  as  his  will,  if  he  intended  the  same  to  be  his 
will,  and  submitted  his  hand  to  be  so  used  with  a  view 
to  his  signature  being  made  to  the  paper,  and  was 
mentally  and  physically  capable  at  the  time  of  making 
known  by  words  or  signs  his  dissent  thereto  had  he 
wished  to  do  so.  McMechen  v.  McMechen,  17  W.  Va.  707. 

x.     Same. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  when  -  -  attempted  to  sign  the 
paper  offered  for  probate,  -  — ,  by  direction  of  the 
draftsman  superintending  the  execution  of  the  paper, 
took  hold  of  the  said  -  — 's  hand  and  steadied  or  even 
guided  it,  and  thus  enabled  him  to  sign  the  same,  the 
signature  so  made  is  in  law  a  sufficient  signing  of  the 
paper  by  the  said  -  -  as  his  will,  if  with  the  knowl- 
edge of  the  contents  of  the  paper  he  submitted  to  his 
hand  being  so  held  or  guided  with  a  view  to  his  signature 


WILLS.  417 

being  made  thereto,  and  was  mentally  and  physically 
able  at  the  time  to  make  known  his  dissent  thereto  by 
words  or  signs  had  he  wished  to  do  so.  McMechen  v.  Me- 
Mechen,  17  W.  Va.  707. 

y.    Attesting  witnesses — Witnesses  present  at  execution 

of  will. 

The  court  instructs  the  jury  that  the  evidence  of  wit- 
nesses who  were  present  at  the  execution  of  the  will  are 
entitled  to  peculiar  weight,  and  especially  is  this  the  case 
with  attesting  witnesses.    Nicholas  v.  Kerslmer,  20  W. 
Va.  255. 

z.    Same — As  to  weight  of  evidence  of  physician  who  at- 
tended testator  during  his  last  illness. 
The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  -        -  was  the  physician  who  attended 
the  testator  during  his  last  illness  and  who  had  been 
his  physician  for  at  least  three  years  previously  thereto 
and  that  he  was  present  at  the  execution  of  the  will,  and 
attested  the  same  as  a  subscribing  witness  thereto  and 
that    said  is    a    credible    person    and    a    man 

worthy  of  belief  then  his  evidence  is  entitled  to  great 
weight  Ward  v.  Brown,  53  W.  Va.  268. 

zl.    Same. 

The  court  instructs  the  jury  that  the  evidence  of  physi- 
cians, especially  those  who  attended  the  testator,  and 
were  with  him  considerably  during  the  time  it  is  alleged 
he  was  of  unsound  mind,  is  entitled  to  great  weight. 
Nicholas  v.  Kershner,  20  W.  Va.  255. 

z2.    Devisees   and  legatees — Opportunities  for  knowing 

mental  condition  of  testator. 

The  court  instructs  the  jury  that  statements  or  declara- 
tions made  by  devisees  or  legatees  under  the  will  as  to  the 


418  WILLS. 

incompetency  of  the  testator  to  make  a  valid  will  are 
entitled  to  little  or  no  weight,  unless  it  is  proven  that 
such  devisees  or  legatees  had,  prior  to  the  time  of  mak- 
ing such  statements  or  declarations,  opportunities  of 
knowing  the  mental  condition  of  the  testator;  and  the 
weight  to  be  given  to  such  declarations  or  statements 
will  depend  entirely  upon  the  facts  amd  opportunities 
the  devisee  or  legatee  is  shown  to  have  possessed  at 
the  time  they  were  made.  Coffman  v.  Hedrick,  32  W.  Va. 
132. 

z3.    Expert  witnesses — How  testimony  of  regarded. 

The  mere  opinions  of  witnesses  not  experts  are  entitled 
to  little  or  no  regard,  unless  they  are  founded  on  facts 
which  warrant  them.  If  the  facts  upon  which  the  opin- 
ions are  founded  are  frivolous,  the  opinions  are  worth 
but  little  or  nothing.  Nicholas  v.  Kershner,  20  W.  Va. 
256. 

z4.    When  opinions  of  experts  can  be  given  on  testimony 

already  in  the  case. 

The  court  instructs  the  jury  that  the  opinion  of  medi- 
cal experts  founded  on  testimony  already  in  the  case  can 
only  be  given  on  a  hpothetical  case,  and  the  hypothesis 
must  be  clearly  stated,  so  that  the  jury  may  know  with 
certainty,  upon  precisely  what  state  of  assumed  facts  the 
expert  bases  his  opinion.  Kerr  v.  .Lunsford,  31  W.  V& 
659. 


WITNESSES.  419 

CHAPTER  74. 
WITNESSES. 

a.    Effect  of  failure  to  produce  witness. 

The  court  instructs  the  jury  that  if  they  believe  from 
the  evidence  that  the  plaintiff  relies  in  this  case  upon  the 
proof  of  his  claim  that was  the  agent  of  the  de- 
fendant in  the  employment  of  plaintiff  on  and  after  the 
day  of ,  18 — ,  upon  which  his  account  here- 
in sued  for  is  based,  it  was  the  duty  of  plaintiff  to  pro- 
duce said  as  a  witness  in  his  behalf,  if  the  said 

is  in  the  jurisdiction  of  this  court,  and  that  his 

failure  to  produce  him  is  in  law  conclusive  proof  that  his 
evidence  would  have  been  against  him  if  produced. 
Garter  v.  Blatchley,  51  W.  Va.  153. 

[NOTE. — Matters  relating  to  the  competency  and  charac- 
ter of  and  the  weight  to  be  accorded  the  testimony  of  wit- 
nesses are  given  under  appropriate  subjects  in  both  parts 
of  this  work.] 


TABLE  OF  CASES-PART  II. 


XJIVING    THE    WEST    VIRGINIA    AND    VIRGINIA    CITATIONS    IN    SUPPORT    OF 
EACH    LEGAL    PROPOSITION    LAID    DOWN. 


The  subjects  printed  in  italics  correspond  to  the  sub-headings, 
pages  and  letters  of  the  text. 

Sub-headings,  under  which  there  are  neither  W.  Va.  nor  Va. 
citations  in  support  of  the  text  therein  contained,  are  omitted. 

THE  TABLE  OF  CASES  IN   PABT  I,   PRECEDES   THAT   SUBJECT. 

A. 

ABELL  v.  INSURANCE  COMPANY,  18  W.  VA.  400. 

"283,a.  Action  "by  insurer  for  cancellation  of  policy — Recovery  of 
premiums  paid  by  policy  holder — How  amount  insurer 
entitled  to  to  be  determined. 

Va.;  McVeigh  v.  Bank,  26  Gratt.   188. 

292,b.  An  action  to  cancel  life  insurance  policy — Replication  to 
plea  of  statute  of  limitations. 

Va.;  Ficklin's  Ex'r.  v.  Carrington,  31  Gratt.  219. 
283,b.  Plea  of  statute  of  limitation  by  insurer. 

Va.;   Ins.  Co.  v.  Duerson's  Ex'r.,  28  Gratt.  644. 

ARBENZ  v.  EXLEY  &  COMPANY,  52  W.  VA.  476. 

288,a.  When  tenant  not  released  from  payment  of  rent  by  failure 
of  landlord  to  make  repairs — Independent  covenant  re- 
quiring landlord  to  make  repairs. 
W.  Va.;  Allen  v.  Bartlett,  20-46; Kline  v.  McClain,  33-32. 

Miller  v.  Wisner,  45-59;  Windon  v.  Stewart,  43-711. 
Va.;  Thompson  v.  Pendall,  12  Leigh.  608. 


ii  TABLE  OF  CASES— PART  II. 

B. 

BANK  v.  KIMBERLAND,  16  W.  VA.  555. 

77,a.  Accord  and  satisfaction — What  may  be  pleaded. 

Va.;  Fant  v.  Miller,  17  Gratt.  216. 

78,c.  Liability  of  creditor  to  debtor  for  negligence  in  collecting 
collateral  accepted  in  discharge  of  debt. 

Va.;    Fant  v.  Miller,  17  Gratt.  216. 

78,b.  When  acceptance  by  creditor  of  order  operates  as  full  satis- 
faction of  debt. 
W.  Va.;  Ruling  v.  Cabell,  9-526. 

Va.;  Anderson  v.  DeSeur,  6  Gratt.  363;  Miller  v.  Mahew, 
17  Gratt,  216. 

BANK  v.  NAPIER,  41  W.  VA.  481. 

293,a.  What  passes  title  to  logs — What  vests  title  to  logs  in  pur- 
chaser. 
W.  Va.;  Morgan  v.  King,  28-1. 

BARKER  v.  RAILROAD  COMPANY,  51  W.  VA.  423. 
BARTHOLMAE  v.  PAULL,  18  >W.  VA.  771. 
BARTLETT  v.  ARMSTRONG,  56  W.  VA.  293. 
BARRICKMAN  v.  OIL  COMPANY,  45  W.  VA.  634. 

353,j.  Contributory  negligence. 

W.  Va.;  Carrico  v.  R.  R.  Co.,  39-86;  Gerity  v.  Haley,  29-98; 
Industrial  Co.  v.   Schultz,  43-470;    McKelvey  v.  R. 
R.  Co.,  35-500. 
353,k.  Contributory  negligence — Burden   of  proof. 

W.  Va.;  Carrico   v.    R.   R.    Co.,    39-86;    Gerity's   Adm'r   v. 

Haley,  29-98. 

348,a.  Gas    furnished  for    domestic    purposes  —  Dangerous    sub- 
stances— Care  and  skill  required  in  its  operations. 
W.  Va.;  Burns  v.  Coal  Co.,  27-288. 

BAYLOR  v.  RAILROAD  COMPANY,  9  W.  VA.  270. 

372,b.  Injuries  occurring  on  track — Private  crossing — Gross  negli- 
gence. 
Va.;  Trout  v.  R.  R.  Co.,  23  Gratt.  619. 

BEACH  v.  FRANKENBERGER,  4  W.  VA.  712. 

BEATTY  LUMBER  CO.  v.  W.  U.  TEL.  CO..  52  W.  VA. 

410. 

394,b.  Delay  in  transmitting  and  delivering  messages. 
Same  authoritties  as  395,d. 


TABLE  OF  CASES— PART  II.  iii 

BEATTY  LUMBER  CO.  v.  W.  U.  TEL.  CO.,  52  W.  VA. 
410 — Continued. 

395,d.  Liablility   of   telegraph   company   for  profit   arising   from 

sales. 
W.  Va.;  Bodkin  v.  Arnold,  48-108;    Hare  v.  Parkersburg, 

24-554;  Jones  v.  Adams,  8-568. 
Va.;  Newbrough  v.  Walker,  8  Gratt.  16. 
394,c.  Repeating  messages — Effect  of  failure  to  repeat. 
W.  Va.;  Brown  v.  Ex.  Co.,  15-812. 

BENTLEY  v.  INSURANCE  COMPANY,  40  W.  VA.  729. 
271,k.  Assignment  of  policy  by  insured  to  pay  mortgage  debt. 

W.  Va.;  Clarke  v.  Hogeman,  13-718;  Colby  v.  Ins.  Co.,  37- 
789 ;  Sheppard  v.  Ins.  Co.,  21-368 ;  Tingle  v.  Fisher, 
20-497. 

Va.;  Davis  v.  Miller,  14  Gratt.  1;  Garland  v.  Richeson, 
4  Rand.  266. 

BEYEL  v.  RAILWAY  COMPANY,  34  W.  VA.  538. 

364,a.  Injuries   caused   by  failure  to  give  sufficient   warning   to 

avoid  the  injury — Necessity  for  establishing  negligence. 

W.  Va.;  Hawker  v.  R.  R.  Co.,  15-528;   Newsome  v.  R.  R. 

Co.,  30-228;  see  also  Christie  v.  R.  R.,  35-117. 
Va.;  R.  R.  Co.  v.  Morris,  31  Gratt.  200. 

BLAIR  v.  CITY  OF  CHARLESTON,  43  W.  VA.  62. 
344,f.  Decrease  of  market  value  of  property  caused  by  grading 

and  paving  of  street. 
W.  Va.;  R.  R.  Co.  v.  Foreman,  24-662;  Stewart  v.  R.  R.  Co., 

38-438. 
Va.;  Kanawha  Co.  v.  Turner,  9  Leigh.   313;    Muire  v. 

Falconer,   10   Gratt.   17. 
345,i.  Enhancement  of  value  of  property  by  grading  and  paving 

streets. 

W.  Va.;  R.  R.  Co.  v.  Foreman,  24-662;  Hargreaves  v.  Kim- 
berly,  26-787;  State  v.  Welch,  36-690;  Stewart  v. 
R.  R.  Co.,  38-438. 

BLOSS  v.  PLYMALE,  3  W.  VA.  393. 

BLOYD  v.  POLLOCK,  27  W.  VA.  75. 
386,b.  Liability   of  purchaser,   though   carrier   failed   to   deliver 

goods. 
W.  Va.;  R.  R.  Co.  v.  Morehead,  5-800;  State  v.  Hughes,  22- 

743. 
Va.;  Pleasants  v.   Pendleton,  6  Ran.   475. 


iv  TABLE  OF  CASES— PART  II. 

BLOYD  v.  POLLOCK,  27  W.  VA.  75— Continued. 
380,a.  What   constitutes   delivery — Delivery   of  goods   to   carrier 
for  shipment — Injury  to  goods  after  arrival  at  destina- 
tion, and  while  in  care  of  carrier. 

W.  Va.;  State  v.  Hughes,  22-743,  and  authorities  therein 
cited. 

BODKIN  v.  ARNOLD,  48  W.  Va  108. 
333,a.  Allowance  for  permanent  and  valuable  improvement — 7m- 

provements  made  when  title  deemed  good. 
W.  Va.;  Bodkin  v.  Arnold,  32-566;    Bodkin  v.  Arnold,  45- 
90;  Cain  v.  Cox,  23-594;  Dawson  v.  Grow,  29-333; 
Hall  v.  Hall,  30-779;  Raymond  v.  Camden,  22-180; 
Lynch  v.  Andrews,  25-751;    Williamson  v.  Jones, 
43-563. 
Va.;  Boiling  v.  Lersner,  26  Gratt.  36. 

BOSLEY  v.  RAILROAD  COMPANY,  54  W.  VA.  563. 
129,j.  Delay  in  shipping  cattle — Assessment  of  damages  caused 

by. 

W.  Va.;  Beatty  Lumber  Co.  v.  W.  U.  T.  Co.,  52-412;  Brown 
v.   Express   Company,   15-812;    McGraw  v.   R.   R., 
18-361;   Maslin  v.  R.  R.  Co.,  14-180;   Rathbone  v. 
R.  R.  Co.,  1-106. 
Va.;  R.  R.  Co.  v.   Sayre,  26  Gratt.   238. 

BOWEN  v.  CITY  OF  HUNTINGTON,  35  W.  VA.  682. 

BRADY  v.  STILTNER,  40  W.  VA.  289. 
302,m.  Malicious  prosecution — Waiver  of  preliminary  examination 

prima  facie  evidence  of  guilt. 
W.  Va.;  Vinal  v.  Core,  18-2. 

Va.;  Maddox  v.  Jackson,  4  Mun.  462. 

BRIDGE    COMPANY    v.    BRIDGE    COMPANY,    34    W. 
VA.  155. 

151,a.  When  all  the  property  sought  to  be  taken  is  not  required. 
W.  Va.;  R.  R.  v.  R.  R.,  17-812. 

BULLINGTON  v.  RAILROAD  COMPANY,  32  W.  VA.  43«. 

C. 
CARDER  v.  BANK,  34  W.  VA.  38. 

CARRELL  v.  MITCHELL,  37  W.  VA.  130. 
225, p.  Equity  of  redemption — Purchase  of  land  by  creditors. 
W.  Va.;  McCallister  v.  Cottrell,  24-174. 


TABLE  OF  CASES— PART  II.  v 

CARRELL  v.  MITCHELL,  37  W.  VA.  130— Continued. 

225,q.  Defeat    of    tax    purchaser's    title — Payment    of    taxes    by 

creditor. 
W.  Va.;  Orr  v.  Wiley,  19-151;  Williams  v.  Russell,  18-629. 

CARRICO  v.  RAILROAD  COMPANY,  35  W.  VA.  389. 

CARRICO  v.  RAILROAD  COMPANY,  39  W.  VA.  86. 
130,e.  Liability  of  carrier  for  negligence  of  contractor. 
W.  Va.;  Carrico  v.  R.   R.   Co.,   39-390. 

Va.;  R.  R.  Co.  v.  Sanger,  15  Gratt.  530. 
130,d.  Liability  of  carrier  for  negligence  of  agents. 
W.  Va.;  Carrico  v.  R.  R.  Co.,  35-389. 

Va.;  R.  R.  Co.  v.  Sanger,  15  Gratt.  230;   R.  R.  Co.  v. 

Wrightman,  29  Gratt.  432. 
140,a.  Obstructions  in  dangerous  proximity  to  R.  R.  track. 

W.  Va.;  Carrico  v.  R.  R.  Co.,  35-389;   Searles  v.  R.  R.  Co., 

32-570. 

Va.;  R.   R.    Co.   v.    Sanger,    15    Gratt.    230. 
140,c.  Exposure  by  passenger  to  danger. 

W.  Va.;  Carrico  v.  R.  R.  Co.,  35-389. 

141,g.  Knowledge  of  carrier  of  danger  to  which  passenger  exposed 
When  negligence  of  passenger  does  not  relieve  carrier 
from  liability. 
W.  Va.;  Carrico  v.  R.  R.  Co.,  35-389;  Downey  v.  R.  R.  Co., 

28-732. 

Va.;  R.  R.  Co.  v.  Anderson,   31  Gratt.  812. 
143,k.  Preponderance  of  evidence  when  contributory  negligence 

relied  on. 

W.  Va.;  Riley  v.  R.  R.  Co.,  27-446;  Snyder  v.  R.  R.  Co.,  11-14. 
141,f.  When  increased  exposure  by  passenger  to  danger  does  not 

prevent  recovery  for  injury — Burden  of  proof. 
W.  Va.;   Carrico  v.  R.  R.  Co.,  35-389. 

Va.;   R.  R.  Co.  v.  Anderson,  31  Gratt.  812;  R.  R.  Co.  v. 

Morris,   31   Gratt.   200. 
198,e.  Physical  suffering. 

W.  Va.;  Riley  v.  Ry.  Co.,  22-146;  Wilson  v.  Wheeling,  19- 
325;   Searles  v.  Ry.  Co.,  32-370. 

CHANCEY  v.   SMITH,  25  W.  VA.  404. 

401,e.  Unlawful  entry  and  detainer — Right  of  action  by  lessee — 

Abandonment  of  lease  by  plaintiff. 

W.  Va.;  Duff   v.    Good,    24-682;    Griffith    v.    McCoy,    8-201; 
Huffman  v.  Anderson,  9-817;   Mitchell  v.  Carder, 
21-277;  Storrs  v.  Feick,  24-605;  Todd  v.  Yates,  20- 
464. 
Va.;  R.  R.  v.  Daniels,  20  Gratt.  344. 


vl  TABLE  OF  CASES— PART  II. 


CHAPMAN  v.  TOWN  OF  MILTON,  31  W.  VA.  384. 

335,a.  Ownership  of  or  control  over  streets. 

W.  Va.;  Curry  v.  Mannington,  23-14;   Wilson  v.  Wheeling, 

19-323;    Sheff  v.  City  of  Huntington,   16-307; 
Va.;  Noble  v.  City  of  Richmond,   31   Gratt.   271. 

CLAIBORNE  v.  RAILROAD  COMPANY,  46  W.  VA.  363. 

134,d.  Arrest  of  passenger  armed  with  a  dangerous  iceapon. 
W.  Va.;  City   of  Charleston   v.   Beller,   45-44. 

CLARKE  v.  RAILROAD  COMPANY,  39  W.  VA.  732. 

376,a.  Construction  of  railroad  crossing — Convenient  crossing. 
W.  Va.;  Code,  Ch.  42,  Sec.  14. 

CLAY  v.  CITY  OF  ST.  ALBANS,  43  W.  VA.  539. 

346,a.  Liability    of    municipal    corporation    for    casting    surface 
water  upon  the  property  of  an  individual. 
Va.;  Richmond  v.  Long,  17  Gratt.  375. 

COAL  COMPANY  v.  HOWELL,  36  W.  VA.  489. 

COLES  v.  INSURANCE  COMPANY,  41  W.  VA.  261. 
270,i.  Incumbrances  upon  property — Absence  of  fraud  on  part  of 

insured. 

W.  Va.;   Dietz  v.  Insurance  Co.,  31-851;  Schwarzbach  v.  In- 
surance Co.,  25-622. 

COFFMAN  v.  HEDRICK,  32  W.  VA.  119  . 

408,e.  Highest  quality  of  mind  not  required  of  testator. 

W.  Va.;   See   Nicholas   v.    Kershner,    20-256,    citing    Greer 
v.  Greer,  9  Gratt.  330. 

CONGROVE  v.  BURDETT,  28  W.  VA.  220. 
84,h.  Boundary  lines — Natural   boundaries   or   lines   of  marked 

trees — Courses  and  distances. 

W.  Va.;  Garrett  v.  Ramsey,  26-345: 
84,a.  Enclosures — What   intruder   not   limited   to — Possession    of 

part  of  the  land — Interlocks. 

W.  Va.;  Garrett  v.  Ramsey,  26-345. 
97,a.  Statute  of  limitations — Against  both  possession  and  title. 

W.  Va.;  Garrett  v.  Ramsey,   26-345. 

221, g.  Color  of  title — Not  necessary  that  evidence  of  be  in  writ- 
ing. 

W.  Va.;  Garrett  v.  Ramsey,  26-345. 
85,b.  Enclosures  —  Possession     of    any    part    of    the    land  — 

Superiority  of  title. 

W.  Va.;  Garrett  v.  Ramsey,  26-345. 


TABLE  OF  CASES— PART  II.  vii 

CONGROVE  v.  BURDETT,  28  W.  VA.  220— Continued. 
220,d.  Source  of  title — Conflicting  title  arising  from  same  source 

— Priority  of  recordation  of  deeds. 
W.  Va.;  Garrett   v.   Ramsey,    26-345;    Core   v.   Faupel,   24- 

238. 

Va.;  Kincheloe  v.  Tracewell,  11  Gratt.  589. 
221,e.  Superior  title  to,  and  adverse  possession  of  a  portion  of 

the  land. 

Same  authorities  as  above. 
97,b.  Statute  of  limitations  against  both  possession  and  title — 

Superiority  title. 

W.  Va.;  Garrett  v.  Ramsey,   26-345. 
222,j.  Boundary  lines — Natural  boundary  lines. 

W.  Va.;  Core  v.   Faupel,   24-238;    Garrett  v.   Ramsey,   26- 

345. 
Va.;  Kincheloe  v.  Tracewell,  11  Gratt.  589. 

COOPER  v.  RAILROAD  COMPANY,  24  W.  VA.  37. 
CORE  v.  FAUPEL,  24  W.  VA.  238. 

CRI SWELL  v.  RAILROAD  COMPANY,  30  W.  VA.  809. 
COULTER  v.  BLATCHLEY,  51  W.  VA.  163. 

100,f.  Employment  of  third  party  by  agent — Ratification  by  prin- 
cipal of  acts  of  agent. 

W.  Va.;  Curry  v.  Hale,  15-867;   Dewing  v.  Hutton,  48-576. 
358,b.  Agency — Acts,  declaration  and  conduct  of  agents — Ratifi- 
cation of  by  principal. 

W.  Va.;  Curry  v.  Hale,  15-867;  Dietz  v.  Insurance  Com- 
pany, 31-851;  Dewing  v.  Hutton,  48-576;  Powell 
v.  Love,  36-96. 

D. 

DAVIDSON  v.  RAILWAY  COMPANY,  41  W.  VA.  407. 
368,k.  Injuries  to  persons  while  trespassing  on  railroad  tracks — 

Assessment  of  damages. 
W.  Va.;  Turner  v.  R.  R.  Co.,  40-675. 
367,h.  Duty  of  engineer  and  fireman  to  keep  constant  look-out 

for  children. 

W.  Va.;  Carrico  v.  R.  R.  Co.,  39-86;  Gunn  v.  R.  R.  Co.,  36- 
165;  Raines  v.  R.  R.  Co.,  39-50. 

DANIELS  v.  RAILWAY  COMPANY,  36  W.  VA.  397. 
DAVIS  v.  COAL  COMPANY,  34  W.  VA.  500. 
310,g.  Place  for  servant  to  work — Examination  of  required   of 

master. 
W.  Va.;   Snyder  v.  R.  R.  Co.,  11-17. 


viii  TABLE  OF  CASES— PART  II. 

DAVIS  v.  COAL  COMPANY,  34  W.  VA.  500— Continued. 

310,h.  Same — Liability  of  master  for  failure  to  make  examina- 
tion of. 

311,1.  Same — Master's  knowledge  of  danger — Entering  dangerous 

place  by  servant  under  direction  of  master. 
W.  Va.;  Snyder  v.   R.   R.  Co.,   11-17. 

DAVIS  v.  LIVING,  50  W.  VA.  431. 

DAVIS  v.  TELEGRAPH  COMPANY,,  46  W.  VA.  48. 

DAVIS  v.  WEBB,  46  W.  VA.  6. 

215,a.  Detinue — Title  to  property. 

W.  Va.;  Jones  v.  Reid,  12-350. 

Va.;  Bank  v.  Waddill,  27  Gratt.  451;  Wiley  v.  Givensr 

6  Gratt.  277. 

DEITZ  v.  INSURANCE  COMPANY,  33  W.  VA.  526. 

282,c.  Knowledge  of  insurer  as  to  destruction  of  property — Re- 
fusal to  pay  loss. 

W.  Va.;  Sheppard  v.  Ins.  Co.,  21-368. 
281,b.  Same — Declarations  of  insurer  as  to  refusal  to  pay  loss. 

W.  Va.;  Sheppard  v.  Ins.  Co.,  21-368. 
266,b.  Mistake  as  to  name  of  party  insured — Knowledge  and  acts 

of  agent  of  insurer. 
W.  Va.;  Henley  v.  Menefee,   10-771;    Troll  v.   Carter,   15- 

567. 

Va.;  Peyton  v.  Harmon,  22  Gratt.  266. 
267,c.  Same. 

Same  authorities. 

DETWILER  v.  GREENE,  1  W.  VA.  109. 
DICKESHIED  v.  BANK,  28  W.  VA.  340. 

241,a.  Gifts  causa  mortis — What  necessary  to  constitute. 

Va.;  Barker  v.  Barker,  2  Gratt.  344;  Brown  v.  Handley, 

7  Leigh.   119;   Durham  v.  Dunkly,  6  Rand.   135; 
Hunter  v.  Jones,  6  Ran.  541;  Miller  v.  Jeffries,  4 
Gratt.  972;   Patterson  v.  Franklin,  7  Leigh.  590; 
Shirley  v.  Long,  6  Ran.  735. 

342,b.  Place  of  gift — Residence  of  donor  and  donee. 
Same  authorities  as  above. 

DINGESS  v.  BRANSON,  14  W.  VA.  100. 

213,a.  Competency  of  grantor  to  execute  deeds — Mental  capacity — 

Intentions  of  grantor. 
See  also  Jarrett  v.  Jarrett,  11  W.  Va.  626. 


TABLE  OF  CASES— PART  II.  ix 

DIMMEY  v.  RAILROAD  COMPANY,  27  W.  VA.  32. 

389,c.  Contributory  negligence — Burden  of  proof. 

W.  Va.;   Sheff  v.  Huntington,  16-307;   Snyder  v.  R.  R.  Co., 
11-14;  Washington  v.  R.  R.  Co.,  17-190. 

DOWNEY  v.  RAILROAD  COMPANY,  28  W.  VA.  732. 

326,a.  Care  required  of  servants — Perilous  position. 

W.  Va.;   Baylor  v.  R.  R.  Co.,  9-270;   Washington  v.  R.  R. 

Co.,  17-190. 
Va.;  R.  R.  Co.  v.  Sherman,  3  Gratt.  602;   R.  R.  Co.  v. 

Whittington,  3  Gratt.  805. 
326,b.  Same — Opportunity  and  duty  of  servant  to  avoid  perilous 

position. 
Same  authorities  as  above. 

E. 

EASTBURN  v.  RAILROAD  COMPANY,   34  W.  VA.  681. 

327,d.  Servant  knowingly  assuming  place  of  danger — Failure  to 

avert  danger. 
W.  Va.;   Downey  v.  R.  R.  Co.,  28-732. 


F. 


FAWCETT   v.   RAILROAD   COMPANY,    24   W.   VA.    755 

373,a.  Causing  loss  of  personal  property — Burden  of  proof — Pre- 
ponderance of  evidence. 
W.  Va.;  Washington  v.  R.  R.  Co.,  17-190. 

FERRELL  v.  FORNEY,  4  W.  VA.  729. 

410,1.  Frand  or  undue  influence  in  procurement  of  will — Corecion 
of  testator. 
Va.;  Green    v.    Green,    9    Gratt.    333;    Parramoure    v. 

Taylor,  11  Gratt.  229. 

411,m.  Understanding  of  testator  as  to  beneficiaries  of  will. 
Same  authorities  as  above. 

FISHER  v.  RAILROAD  COMPANY,  42  W.  VA.  183. 

144,o.  Negligence — Apportionment  of  negligence. 

W.  Va.;  Butcher  v.  R.  R.  Co.,  37-180. 
143,n.  Concurrent  negligence. 

W.  Va.;  Gerity  v.  Haley,  29-98. 

Va.;  Dunn  v.  R.  R.  Co.,  78-645;  R.  R.  Co.  v.  Yeamons, 
86-860;  Rudd  v.  Ry.  Co.,  80-549. 


x  TABLE  OF  CASES— PART  II. 

FOLEY  v.  CITY  OF  HUNTINGTON,  51  W.  VA.  396. 
336,e.  Powers,  duties  and  liabilities  of  municipal  corporations — 

Contributory  negligence — Burden  of  proof. 
•W.  Va.;  McCreary  v.  R.  R.  Co.,  43-110;  Wilson  v.  Wheeling, 

19-232;   Yeager  v.  Bluefleld,  40-484. 

340,m.  Condition  of  street  and  sidewalk  at  time  of  injury — Con- 
dition of  before  or  after  injury. 
Same  authorities  as  above. 

FOX  v.  RAILROAD  COMPANY,  34  W.  VA.  466. 
147,c.  Permanent  injury  to  real  property. 

W.  Va.;  Johnson  v.  Parkersburg,  16-405. 

FRANKLIN  v.  GEHO,  30  W.  VA.  27. 
399,a.  Forcible  entry  and  detention  of  lands. 
W.  Va.;  Hayes  v.  Altizer,  24-505. 

G. 

GARBER   v.    BLATCHLEY,    51   W.    VA.    147. 
420,a.  Effect  of  failure  to  produce  witness. 

W.  Va.;  Dewing   v.    Hutton,    48-576;    Hefflebower   v.    Diet- 
rich, 27-16;   Trust  Co.  v.  McClellan,  40-405;   Gart- 
lan  v.  Hickman,  56-75. 
357,a.  Oil  and  Oas   leases — Machinery  and  fixtures — Reasonable 

time  given  lessee  to  remove  same  from  leased  premises. 
W.  Va.;  Guffy  v.  Hukill,  34-49;    Steelsmith  v.  Gartlan,  45- 
27;   Urpman  v.  Oil  Co.,  53-51. 

GAS  COMPANY  v.  WHEELING,  8  W.  VA.  320. 
GASTON   v.   MACE,   33  W.  VA.   14. 
GIEBELL  v.  COLLINS  COMPANY.  54  W.  VA.  518. 
307,a.  Machinery  and   appliances — Character   of  required   to    be 

furnished. 

W.  Va.;  Burns  v.  Coal  Co.,  27-286. 
308,c.  Reasonably  suitable  and  safe  machinery  and  appliances  and 

safe  place  to  work — Duty  of  master  to  furnish. 
W.  Va.;  Burns  v.  Coal  Co.,  27-286. 

GILLFNGHAM  v.  RAILROAD  COMPANY,  35  W.  VA.  588. 
202,n.  False  arrest — Outrage,  indignity  and  humiliation  put  upon 

party. 

W.  Va.;  Ricketts  v.  Ry.  Co.,  33-433. 
235,c.  Scope  of  authority  of  agents  or  conductor. 
W.  Va.;  Tracy  v.  Cloud,  10-19. 

Va.;  Crump  v.  Mining  Co.,  7  Gratt.  52;  Harris  v.  Nicho- 
las 5  Mun.  483. 


TABLE  OF  CASES— PART  II.  xi 

GROCERY  COMPANY  v.  WATKINS,  41  W.  VA.  787. 

354,a.  Negotiable  instruments — Joint  promisor — When  party  liable 

as. 
W.  Va.;  Burton  v.  Hansford,  10-470. 

GROVER  v.  RAILROAD  COMPANY,  53  W.  VA.  103. 
H. 

HAINES  v.  COCHRAN,  26  W.  VA.  719. 
397,a.  Right  of  title  to,  and  right  to  possession  of  property. 
Va.;  Newsom  v.  Newson,  1  Leigh.  86. 

HALL  v.  HALL,  27  W.  VA.  468. 
94,a.  Payment  of  taxes  by  one  holding  title  under  a  void  judicial 

sale. 

W.  Va.;  Bradley  v.  Ewart,  18-589;  Hall  v.  Hall,  12-1;  Lynch 
v.  Andrews,  26-541;  Simpson  v.  Edmiston,  23-675; 
Sturm  v.  Fleming,  26-541;  Whitman  v.  Sayers, 
9-171. 

Va.;  Lohr  v.  Miller,  12  Gratt.  452. 

94,b.  Same — Privity  of  estate  between  purchaser  and  legal  owner. 
Same  authorities  as  above. 

HALL  v.  RAILROAD  COMPANY,  44  W.  VA.  36. 

131,f.  Excessive  railroad  fares — Schedule  of  rates — Rules  of  com- 
pany— Violation  of  by  conductors. 
W.  Va.;  Gillingham  v.  R.  R.  Co.,  35-588;  Gregory  v.  R.  R. 

Co.,  37-606. 

131,g.  Same — Concerning  act  of   conductor  in   collection   of  ex- 
cessive fares. 
Va.;   Brockenbrough  v.  Spindle,  17  Gratt.  20. 

HANNUM  v.  HILL,  52  W.  VA.  166. 
200,1.  Displaced   telephone   wires — Injuries   caused    by — Liability 

for. 
W.  Va.;   Schwartz  v.  Schull,  45-405. 

HARGREAVES  V.  KIMBERLY,  26  W.  VA.   787. 
191,h.  Diversion  of  stream  of  surface  water — Encroachment  of 

stream  upon  property  of  land  owner. 
W.  Va.;  Gillison  v.  Charleston,  16-282;   Knight  v.  Brown, 

25-808. 
404,a.  Liability  for  changing  the  natural  course  of  a  stream. 

Same  authorities  as  above. 
405,b.  Rights  of  defendant  when  properly  on  his  own  ground — 

Usual  condition  of  stream. 
Same  authorities  as  above. 


xii  TABLE  OF  CASES— PART  II. 

HARGREAVES    v.    KIMBERLY,    26    W.    VA.    787— C:n- 
tinued. 

405,c.  Same. 

Same  authorities  as  above. 

HAST  v.   RAILWAY   COMPANY,   52   W.    VA.   396. 

375,c.  Permanent  injuries  to  real  estate — When  value  of  property 

depreciated. 
W.  Va.;  Blair  v.  City  of  Charleston,  43-62;  Quinn  v.  R.  R. 

Co.,  46-151;  Stewart  v.  R.  R.  Co.,  38-438. 
193,1.  Permanent   injury  to   real   estate   by   railroad  company — 

Concerning  depreciation  in  value  caused  by. 
W.  Va.;   Ball  v.  Cox,  29-407;    Dickens  v.  Salt  Co.,  41-511; 

Talbott  v.  King,  32-6. 
Va.;  Sampson  v.  Goochland,  5  Gratt.  241. 

HAWKER  v.  RAILROAD  COMPANY,  15  W.  VA.  628. 

372,a.  Injuries  to  animals — Injuries  occurring  on  track. 
W.  Va.;  Elaine  v.  R.  R.  Co.,  9-252 

HOFFMAN  v.  DICKINSON,  21  W.  VA.  142. 

188,b.  Defective  machinery  and  appliances — Knowledge  of  master 

as   to. 

'W.  Va.;  Burns  v.  Coal  Company,  27-283;  Cooper  v.  R.  R. 
Co.,  24-37;  Criswell  v.  Ry.  Co.,  30-798;  Dimmy  v. 
R.  R.  Co.,  27-32. 

HOOD  v.  BLOCK,  29  W.  VA.  244. 
HOUSTON  v.  McNEER,  40  W.  VA.  365. 

112,a.  Assignment  of  bonds  without  recourse. 

W.  Va.;  Crislip  v.  Cain,  19-438;  Robinson  v.  Welty,  40-385; 

Wamsley  v.  Currence,  25-543. 
112,b.  Same — Money  due  at  time  of  assignment. 

Same  authorities  as  above. 
112,c.  Same — Effect  of  written  agreement — Risk  of  collection — 

Parol  evidence. 
Same  authorities  as  above. 

HURXTHALL  v.  BOOM  COMPANY,  53  W.  VA.  87. 

194,o.  Mitigation  of  damages. 

See,  also,  Vinal  v.  Core,  18  W.  Va.  4. 

HUTCHINSON  v.  PARKERSBURG,  25  W.  VA.  226. 

192J.  Changing  grades  of  streets — Damages  resulting  from. 
W.  Va.;  Johnson   v.   Parkersburg,   16-426. 


TABLE  OF  CASES— PART  II.  xiii 

I. 
ILSLEY  v.  WILSON   42  W.  VA.  757. 

87,e.  Adverse  possession  of  real  estate  in  third  party. 

Va.;  Cline  v.  Caton,  22  Gratt.  392;  Korner  v.  Rankin, 
11,  Gratt.  427;  Overton  v.  Davisson,  1  Gratt.  223; 
Taylor  v.  Burnsides,  1  Gratt.  196. 
87,f.  Breech  of  covenant — Statute  of  limitations. 
W.  Va.;  Riddle  v.  Core,  21-53. 

J. 

JARRETT  v.   STEVENS,  36  W.  VA.  445. 

93,b.  Necessity  for  connecting  title  of  land — Lengthening  posses- 
sion. 
93,c.  Possession  limited  to  color  of  title — Actual  enclosures. 

W.  Va.;  Adams  v.  Alkire,  20-480;   Oney  v.  Clendennin,  28- 

35,  52. 

82,a.  Continuity    of   possession — Tacking    on    different   adverse 
possessions. 
Va.;  Stonestreet  v.  Doyle,  75-356. 

JOHNSON  v.  BROWN,  13  W.  VA.  71. 

291,a.  Libel  and  slander — Matter  published  in  course  of  judicial 
proceedings. 
Va.;  Mosley  v.  Moss,  6  Gratt.  549;  Dillond  v.  Collins, 

25  Gratt.  351. 

291,b.  Same — Malice  towards  plaintiff. 
Dillard  v.  Collins,  25  Gratt.  351. 

JOHNSON  v.  BURNS,  39  W.  VA.  658. 
JOHNSTON  v.  BANK,  27  W.  VA.  343. 
JONES  V.  RAILROAD  COMPANY,  14  W.  VA.  514. 
JORDAN  v.  BENWOOD,  42  W.  VA.  312. 

346,b.  Drains  or  sewerage  for  carrying  away  water  from  cellars — 
Concerning  requirements  of  municipal  corporation  to 
furnish. 

W.  Va.;  Mendel  v.  Wheeling,   28-233;    Gillison  v.   Charles- 
ton, 16-282;  Knight  v.  Brown,  25-808. 
347,c.  Raising  grade  of  street. 

Same  authorities  as  above. 
347,d.  Same — Injuries  resulting  from  other  causes. 

Same  authorities  as  above. 
392,b.  Same  as  346,b. 
393,c.  Same  as  347,c. 
393,d.  Same  as  347,d. 


xiv  TABLE  OF  CASES— PART  II. 

K. 

'KERR  v.   LUNSFORD,   31   W.  VA.   659. 

418,z4.  When  opinions  of  expert  witnesses  can  be  given  on  testi- 

money  already  in  the  case. 
W.  Va.;  McMechen  v.  McMechen,  17-683. 

KYLE  v.  HARVEY,  25  W.  VA.  716. 
L. 

LAIDLEY  v.  LAND  COMPANY,  30  W.  VA.  505. 

214,b.  Defective  acknowledgment  of  married  women. 

W.  Va.;  Blair  v.  Sayre,  29-604;  Laidley  v.  Knight,  23-741; 
McMullen  v.  Egan,  21-245;  Pickens  v.  Kniseley, 
29-1. 

Va.;  Grove  v.  Trumbo,  14  Gratt.  541;  Hairston  v.  Ran- 
dolph, 12,  Leigh.  445-459;  Sister  v.  McClanahan,  2 
Gratt.  280;  Todd  v.  Baylor,  4  Leigh.  498. 

LAND    COMPANY   v.    INSURANCE    COMPANY,    35    W. 

278,b.  Time  for  making  proof  of  loss — Waiver  of  proof. 

Va.  666. 

W.  Va.;  Deitz  v.  Ins.  Co.,  33-526;  Nease  v.  Ins.  Co.,  32-283; 
McFarland  v.  Ins.  Co.,  6-435;  Sheppard  v.  Ins.  Co., 
21-383, 

LANDERS  v.  RAILROAD  COMPANY,  46  W.  VA.  492. 
190,e.  Ejecting   persons   from    freight    trains — Carrier's    liability 

for  injuries  caused  by. 

W.  Va,;  Bess  v.  Ry.  Co.,  35-492;  Crogan  v.  Ry.  Co.,  39-415. 
luO.f.  Same — Use  of  needless  force  in. 

Same  authorities  as  above. 

370,a.  In  whom  power  or  authority  to  eject  rests. 
370,b.  Same  authorities  as  above. 

138,f.  Special  instructions  of  company  as  to  movement  of  trains — 
Acts  of  conductor  when  within  the  scope  of  his  duty  and 
power. 
W.  Va.;  Bess  v.  R.  R.  Co.,  35-492. 

LANE  v.  BLACK,  21  W.  VA.  617. 

101,g.  False  representations  by  agent — Concealment  of  facts  by 
agent. 
Va.;  Crump  v.  Mining  Co.,  7  Gratt.  3<>8;  Grim  v.  Byrd, 

32  Gratt.  293. 
lOl.h.  Same. 

Same  authorities  as  above. 


TABLE  OF  CASES— PART  II.  XV 

LAWSON  v.  CONOWAY,  37  W.  VA.,  159. 

362,a.  Degree  of  care  and  skill  required  of  physicians — Special 

agreement — Inference  as  to  negligence. 
W.  Va.;  Kuhn  v.  Brownfield,  34-256. 

LAWSON  v.  DALTON,  18  W.  VA.  766. 

404,b.  Unlawful   entry  and   detainer — Within   what   time  action 

must  be  brought. 
W.  Va.;Mann  v.  Bryant,  12-516. 

LEVY  v.  INSURANCE  COMPANY,  58  W.  VA.  . 

LOGIE  v.  BLACK,  24  W.  VA.  1. 

159,i.  Contracts — Additional   claims  procured  through   efforts  of 

third  parties. 
•   W.  Va.;   Seltzer  v.  Beall,  19-274. 

LOWE  v.  SETTLE,  32  W.  VA.  600. 

82,e.  Deed  conveying  title — Effect  of  delivery  of — Adverse  pos- 
session— What  necessary  to  establish. 
W.  Va. ;  Core  v.  Faupel,  24-239 ;  Lowe  v.  Settle,  22-387. 
89,b.  Holding  by  vendee  as  against  vendor — Executory  contracts 

— Future  conveyances. 
W.  Va.;  Core  v.  Faupel,  24-239. 

LUMBER  COMPANY  v.  WARD,  36  W.  VA.  573. 
M. 

McCREERY  v.  RAILROAD  COMPANY,  43  W.  VA.  110. 

313,b.  Railroad  track  and  road  beds — Duty  of  master  to   keep 

clear  of  dangerous  obstructions. 

W.  Va.;  Flanagan  v.  R.  R.  Co.,  40-436;  Robinson  v.  R.  R. 
Co.,  40-583. 

McDOUGAL  v.  MUSGRAVE,  46  W.  VA.   509. 

92,g.  Expiration  of  landlord's  life  estate — Tenant's  remainder  in 

fee  dependent  upon. 
W.  Va.;  Hurst  v.  Hurst,  7-289. 

Va. ;  Humphrey  v.  Foster,  13  Gratt.  65. 

McMASTER  v.  DYER,  44  W.  VA.  644. 

360,d.  Exemplary  damages — Definition  of. 

W.  Va.;  Mayer  v.  Frobe,  40-246,  overruling  Beck  v.  Thomp- 
son, 31-459,  and  Pegram  v.  Stortz,  31-220. 


xvt  TABLE  OF  CASES— PART  II. 

McMECHEN  v.  McMECHEN,  17  W.  VA.  683. 

410,j.  Fraud  or  undue  influence  in  procurement  of  will — Burden  of 
proof. 

Va.;  Pasley  v.  English,  10  Gratt.  242;  Rea  v.  Trotter, 
26  Gratt.  585. 

McVEY  v.  RAILROAD  COMPANY,  46  W.  VA.  111. 

369,m.  Injuries  to  persons  on  railroad  tracks — Gross  negligence — 

Contributory  negligence. 
W.    Va.;  Newsome  v.  Ry.  Co.,  30-228. 

McVEY  v.  St.  CLAITl  COMPANY,  49  W.  VA.  412. 

317,a.  Fellow-servant — When  superiority  and  power  and  authority 

does  not  destroy  relationship  of. 
Citing  in  general,  Jackson  v.  R.  R.,  43-380. 

MASLIN  v.  RAILROAD  COMPANY,  14  W.  VA.  180. 
126,d.  Special  contracts — Delay  in  shipment  under — Injuries  re- 
sulting from  negligence. 
Va.;  R.  R.  Co.  v.  Sayers,  26  Gratt.  648. 

MASON  v.  BRIDGE  COMPANY,  20  W.  VA.  223. 
See  section  7,  Ch.  44  Code. 

MAUPIN  v.  INSURANCE  COMPANY,  53  W.  VA.  557. 
276,x.  Books  and  papers — Parol   waiver   of  requirements  as   to 

where  to  be  kept..  "Iron-Safe  Clause." 
W.  Va.;   Ins.  Co.  v.  Board,  49-360. 
266,a.  Written  agreement  exclusive  evidence  of  contract. 

W.  Va.;  Crislip  v.  Cain,  19-438;  Houston  v.  McNeer,  40- 
368;  Ins.  Co.  v.  Board,  49-360;  Knowlton  v.  Camp- 
bell, 48-294. 

MAXWELL  v.   CUNNINGHAM,   50  W.   VA.   298. 
81,a.  Color  or  claim  of  title — What  party  relying  on  under  must 

show. 

W.  Va.;  Core  v.  Faupel,  24-238. 

88,a.  Entry  upon  land  under  title  of  legal  owner — How  contro- 
verted. 
W.  Va.;  Core  v.  Faupel,  24-238. 

MAXWELL  v.  KENT,  49  W.  VA.  542. 

MAYER  v.  FROBE,  40  W.  VA.  246. 

(This  case  overrules  Beck  v.  Thompson,  31  W.  ya.  459. 
and  Pegram  v.  Stortz,  31  W.  Va.  220,  as  to  exemplary 
damages.) 


TABLE  OF  CASES— PART  II.  xvil 

MAYER  v.  FROBE,  40  W.  VA.  246— Continued. 

196,b.  Same — Exemplary  damages. 

W.  Va.;   Battrell   v.   Ry.   Co.,   34-232;    Riddle  v.  McGinnls, 

22-253. 

Va.;  Boreland  v.  Barnett,  76-128. 
197,c.  Same,  and  same  authorities  as  above. 
287c.  Exemplary  damages..  Same  authorities  as  above. 

MEDLEY  v.  INSURANCE  COMPANY,  55  W.  VA.  342. 
270,h.  Incumbrances   upon   property   insured — Knowledge   of  in- 
surer as  to. 

W.  Va.;  Bank  v.  Ins.  Co.,  55-261;  Bryan  v.  Ins.  Co.,  8-605; 
Miller  v.  Ins.  Co.,  12-116;  Maupin  v.  Ins.  Co.,  53- 
557. 

269,f.  Title  or  ownership  of  property  insured — Knowledge  of  in- 
surer as  to. 
W.  Va.;  Cleavenger  v.  Ins.  Co.,  47-595;  Quarrier  v.  Ins.  Co., 

10-507;  Wolpert  v.  Ins.  Co.,  44-734. 

Va.;   Ins.  Co.  v.  Neill,  28  Gratt  389;  Ins.  Co.  v.  Rodefer, 
97  Va..  747. 

MICHAELSON  v.  CAUTLEY,  45  W.  VA.  533. 

MILLER  v.  PULP  COMPANY,  38  W.  VA.  558. 

213,a.  Injury  to  water  mill  by  construction  of  dams  and  gates. 

W.  Va.;  Hargreaves  v.  Kimberly,  26-788;  R.  R.  Co.  v.  Fore- 
man, 24-662. 

MOORE   v.    DOUGLASS,    14   <W.    VA.    708. 

400,c.  Unlawful  entry  and  detainer — Possession  under  a  lease — 
Question  of  title  not  to  be  regarded. 

Va.;   Olinger  v.  Shepherd,  12  Gratt.  471. 
400, d.  Same — Possession  under  grantor — Question  of  boundaries 

— Prior  possession  of  defendant. 
Same  authorities  as  above. 

MOORE  v.  RAILROAD  COMPANY,  41  W.  VA.  160. 

133,b.  Fraud  in  procurement  of  railroad  ticket — Right  of  carrier 

to  rescind  contract. 
W.  Va. ;  McKay  v.  R.  R.  Co.,  34-65. 

135,a.  Same — Holding  fraudulent  ticket — Right  of  carrier  to  re- 
ject. 

W.  Va.;  McKay  v.  R.  R.  Co.,  34-65. 
189, d.  Ejecting  passengers  from  passenger  trains. 
W.  Va.;   McKay  v.  R.  R.  Co.,  34-65. 


xviii  TABLE  OF  CASES— PART  II. 

MOORE  v.  SHOPPERT,  22  W.  VA.  282. 

39&,a..Turnpike  companies — Adverse  interests — Authority  of  coun- 
ty court. 

W.  Va.;  Caldwell  v.  Prindle,  19-604. 
398,b.  Same — Unauthorized  acts  of  county  court. 

Va.;  Garpin  v.  Thomas,  2  Hen.  &  Mun.  139. 


N. 


NEILL  v.  PRODUCE  COMPANY,  41  W.  VA.  37. 

109,b.  Bills  of  Lading — Fraudulent  transfer — Purpose  of — Knowl- 
edge of. 

Same  authorities  as  109,a. 
109,a.  Interest  in  bill  of  lading  or  its  proceeds. 

W.  Va.;  Altmeyer  v.  Caldfield,   37-847;    Banking  Company 

v.  Buckman,  38-84. 

Va. ;  Mentz  v.  Henley.  2  Hen.  &  Mun.  308. 
110,e.  Charging  draft  to  account  of  pledgor — Application  of  fundt 

of  pledgor  in  bank. 
Same  authorities  as  109,a. 

NICHOLAS  v.  KERSHNER,  20  W.  VA.  251. 

400,h.  Favoritism  or  partiality  of  testator  toward  his  children. 
'W.  Va.;  Ferrell  v.  Forney,  4-742. 

Va.;  Parraman  v.  Fogle,  11  Gratt.  239;   Simmerman  v. 

Songer,  29  Gratt.  24. 
409,i.  Fickleness  of  testator  as  concerns  his  children. 

Same  authorities  as  above. 
409,g.  Naming  of  all  of  testator's  children  in  will — No  necessity 

for. 
407,a.  Legal  capacity  to  make  will. 

W.  Va.;  Jarrett  v.  Jarrett,  11-584. 
407,b.  Capacity  to  make  will — Comparison  of  as  to  deeds. 

W.  Va.;  Jarrett  v.  Jarrett,  11-584. 
407,c.  Old  age  of  itself  not  sufficient  evidence  of  incapacity. 

W.  Va.;  Jarrett  v.  Jarrett,  11-584. 

413,1.  Manner  of  placing  testator's  name  to  will — Recognition  by 
testator  in  presence  of  attesting  witnesses  of  signature  to 
will. 
W.  Va.;  McMechen  v.  McMechen,  17-683;  Webb  v.  Dye,  18- 

376. 

Va.;  Cheatham  v.  Hatcher,  30  Gratt.  56;  Jesse  v.  Parker, 
6  Gratt.  57. 


TABLE  OF  CASES— PART  II.  xix 

NORMILE  v.  TRACTION  COMPANY,  57  W.  VA.  132. 

199,g.  Physical  and  mental  suffering — How  damages  estimated — 

Contingent  or  speculative  damages. 
W.  Va.;  Peters  v.  Johnson,  50-641. 
198,f.  Same. 
390,f.  Contributory  negligence — How  responsibility  of  escaped. 

W.  Va.;  Dimmy  v.  R.  R.  Co.,  27-32;  Hoffman  v.  Dickinson, 
31-154;  Meeks  v.  R.  R.  Co.,  52-102. 

O. 

OBER  v.   STEVENS,   54   W.   VA.   354. 

377,a.  Commission  for  making  sale  of  real  estate. 

W.  Va.;  Clay  v.  Deskins,  36-350;  Con  way  v.  Sweeny,  24-643; 
Kennedy  v.  Ehlen,  31-540. 

OLIVER  v.  RAILROAD  COMPANY,  42  W.  VA.  703. 

324,m.  Danger  known  to  servant — Willful  encountering  danger  by. 
W.  Va.;  Hoffman  v.  Dickinson,  31-142;  Johnson  v.  Ry.  Co., 
36-73;   Woodell  v.  Imp.  Co.,  38-23;   Osborn  &  Co. 
v.  Francis,  38-312. 

OVERBY  v.  RAILROAD  COMPANY,  37  W.  VA.  524. 
P. 

PARR  v.  CURRENCE,  53  W.  VA.  524. 

90,d.  Adverse  possession — Holding  by  co-tenant  as  adverse  to  co- 
tenant — Waiver  of  rights. 

W.  Va.;  Bennett  v.  Pierce,  50-604;  Talbott  v.  Woodford,  48- 
449. 

PARRISH  v.  CITY  OF  HUNTINGTON,  57  W.   VA.   286. 

337,f.  Care  and  -caution  required  of  municipal  corporation. 

W.  Va.;  Childrey  v.  Huntington,  34-557. 
335,c.  Powers,  duties  and  liabilities  of  municipal  corporations. 

W.  Va.;  Briggs  v.  Huntington,  32-55;  Chapman  v.  Milton, 
31-384;  Gibson  v.  Huntington,  38-177;  Phillips  v. 
Huntington,  31-477;  Sheff  v.  Huntington,  16-307; 
VanPelt  v.  Clarksburg,  42-218;  Wagoner  v.  Pt. 
Pleasant,  42-798;  Wilson  v.  Wheeling,  19-323;  Yea- 
ger  v.  Bluefield,  40-484. 

PARSONS  v.  HARROLD,  46  W.  VA.  122. 

391, a.  Suretyship — When  payee  may  elect  to  hold  persons  endors- 
ing on  back  of  note  as  original  promisors,  or  endorsers. 


xx  TABLE  OF  CASES— PART   II. 

PARSONS  v.  HARROLD,  4G  W.  VA.  122— Continued. 

W.  Va.;  Burton  v.  Hansford,  10-470;  Creigh  v.  Hedrick,  5- 
140;  Long  v.  Campbell,  37-665;  Milling  Co.  v.  Vv'at- 
kins,  41-787. 

PETERS  v.  JOHNSON,  50  W.  VA.  644. 
PHILLIPS  v.  HUNTINGTON,  35   W.  VA.   406. 
336,d.  Powers,  duties  and  liabilities  of  municipal  corporations — 

Contributory  negligence. 

W.  Va.;  Childrey  v.  Huntington,  34-457;  Moore  v.  Hunting- 
ton,  31-842;  Sheff  v.  Huntington,  16-308;  Wilson  v. 
Wheeling,  19-325;  Yates  v.  Graf  ton,  33-507. 

PICKENS  v.  BOOM  COMPANY,  58  W.  VA.  . 

115,f.  Injury  to  owner  of  water  mill  by  construction  and  use  of 

boom. 

W.  Va.;   Pickens  v.  Boom  Co.,  51-445;  Bodkin  v.  Arnold,  48- 
108;   James  v.  Adams,  8-568;    Miller  v.  Pulp  Co., 
30-567;    Watts   v.   R.   R.,   39-210. 
194,n.  Same  as  115,f. 

Same  authorities. 

212,a.  Slackening  water-power  by  causing  sediment  in  stream — 
Rental  value  of  property  damaged — Statute  of  limitations. 
W.  Va.;   Bodkin  v.  Arnold,  48-108;  James  v.  Adams,  8-568; 
Pickens  v.  Boom  Co.,  51-445. 

PORTER  v.  MACK,  50  W.  VA.  581. 

R. 
RAILROAD  COMPANY  v.  OIL  COMPANY,  35  W.  VA.  205. 

150,a.  Lateral  lines — Right  to  construct — Abandonment  of  work 

on  main  line. 
W.  Va.;   Bridge    Company    v.     Bridge    Company,    34-155; 

Code,  ch.  54,  sec.  69. 
151,d.  Lateral  line  defined. 

W.  Va.;  Code,  chapter  131,  sec.  5. 
146,a.  Necessity  for  taking  property — How  determined. 

See  Gas  Co.  v.  Lowe  &  Butler,  52  W.  Va.  662,  citing  Salt 
Co.  v.  Brown,  7  W.  Va.  191. 

RAILROAD  COMPANY  v.  SHEPHERD,  26  W.  VA.  672. 

RAILWAY  COMPANY  v.  BUSKIRK,  57  W.  VA.  417. 
1 18,f.  Condemnation    proceedings — Location,    market    value    and 

compensation. 
W.  Va.;   Stewart  v.  R.  R.  Co.,  38-438. 


TABLE  OF  CASES— PART  II.  xxi 

RAILWAY  CO.  v.  BUSKIRK,  57  W.  VA.  417— Continued. 
148,g.  What  not  to  be  considered  in  estimating  damages. 

W.  Va.;  Blair  v.  Charleston,  43-62;    Stewart  v.  R.  R.  Co., 

38-438. 

Va.;  McGuire   v.    Falconer,    10    Gratt.    12;    Mitchell   v. 
Thorn,  21  Gratt.  178. 

RATHBONE  v.  RAILROAD  COMPANY,  1  W.  VA.  87. 
123,a.  Special    contracts — Shipment   under — Recovery   under. 

For  discussion  of  this  proposition  see  Maslin  v.  R.  R.  Co., 
14  W.  Va.  206. 

REESE  v.  RAILROAD  COMPANY,  42  W.  VA.  333. 
322,j.  Patent  danger — When  warning  as  to  not  necessary. 

W.  Va.;   Downey  v.  R.  R.  Co.,  28-732;    Stewart  v.  Ry.  Co., 
38-438,  and  40-188. 

RHODES  V.  RAILWAY  COMPANY,  49  W.  VA.  494. 

RICHARDS  v.  IRON  WORKS,  56  W.  VA.  510. 
312,1.  Liability  of  master  for  negligent  acts  of  foreman. 

W.  Va.;  Madden  v.  R.  R.  Co.,  28-610;  Stewart  v.  R.  R.  Co., 

40-188. 
311,j.    Defective  materials — Duty  of  master  to  furnish  reasonably 

safe  and  sound  material. 
Same  authorities  as  above. 
312,k.  Defective  workmanship — Accident  caused  by,  though  best 

material  be  used. 

W.  Va.;   Johnson  v.  R.  R.  Co.,  36-73;  Knight  v.  Cooper,  36- 
232. 

RIDDLE  v.  McGINNIS,  22  W.  VA.  253. 

361,a.  Parent  and  child — Loss  of  service  of  minor  by  parent — 
Concerning  parents'  relinquishment  of  control  of  minor. 

Va.;  Clemm  v.  Holmes,  33  Gratt.  ;  Lee  v.  Hodges, 

13  Gratt.  726. 
361,b.  Same. 
387,a.  Same  as  361,a. 

202,o.  Seduction  of  minor  daughter — Shame,  loss  of  respect  and 
mortification  of  parent — Same  as  361,a. 

RILEY  v.  RAILROAD  COMPANY,  27  W.  VA.  145. 
333,t.  When  right  to  recover  not  affected  by  contributory  negli- 
gence— Preponderance  of  evidence. 
W.  Va.;   Johnson  v.  R.  R.  Co.,  25-570;  Washington  v.  R.  R. 

Co.,  17-214. 
313,a.  Railroad  tracks — Duty  of  master  to  keep  clear  of  dangerous 

obstructions — What  servant  has  right  to  presume. 
W.  Va.; Cooper  v.   R.   R.,   24-37. 


xxii  TABLE  OF  CASES— PART   II. 

ROBINSON  v.  LOWE,  50  W.  VA.  75. 

81,c.  Adverse -possession — Color  of  title — Character  of  deed  which 

gives  color  of  title. 

W.  Va.;  Adams  v.  Alklre,  20-480;  Covey  v.  Porter,  22-121; 
Core  v.  Faupel,  24-238;  Jackson  v.  Huntington, 
5-402;  Jones  v.  Lemon,  26-630. 

Va.;   Powell  v.  Harmer,  2  Peters,  141;  Shonks  v.  Lancas- 
ter, 5  Oratt.  110. 

ROBINSON  v.  LOWE,  56  W.  VA.  308. 

ROGERS  v.   BOOM   COMPANY,   39   W.   VA.   272. 

« 

ROWAN  &  COMPANY  v.  HULL,  55  W.  VA.  335. 

I65",x.  Contracts — Commissions  for  selling  lands — Failure  to  com- 
plete contract — Party  responsible  for. 

W.  Va.;   Sturm  v.  Parrish  ,1-125. 
377,b.  Consideration  of  contract  for  making  sale. 

W.  Va.;  Reynolds  v.  Tompkins,  23-229. 
377,c.  When  agent  entitled  to  commission,  though  sale  not  made. 

W.  Va.;   Sturm  v.  Parrish  ,1-125. 

ROSENDORFF  v.  POLING,  48  W.  VA.  621. 

99,c.  Scope  of  authority  of  agent — Ratification  of  acts  of  agent 

by  principal. 

W.  Va.;  Curry  v.  Hale,  15-867;  Dyer  v.  Duffy,  39-149. 
100,d.  Same — Agent's  want  of  authority. 
Same  citations  as  above. 

RYLAND  v.  RAILWAY  COMPANY,  55  W.  VA.  181. 
S. 

SAYRE  v.  EDWARDS,  19  W.  VA.  352. 

169,a.  Separate  contracts — Termination  of  suit  depending  upon. 
170,b.  Same — Documentary   evidence — Effect   of. 
W.  Va.;   Dickinson  v.  R.  R.  Co..  7-413. 
Va.;  White  v.  Clay,  7  Leigh.  68. 

SCHWARTZ  v.  SCHULT  ,  45  W.  VA.  405. 

202. p.  Explosion  of  dynamite — Injuries  caused  by. 

Va.;  Zinc   Co.   v.  Martin,   93-791. 
233,b.  Admissions  of  defendant — Negligence. 

Va.;   Zinc   Co.   v.   Martin,   93-791. 

SEARLES  v.  RAILWAY  COMPANY,  32  W.  VA.  370. 
129,a.  Carriers    of    passengers — Duty    of    railroads    to    exercise 
greatest   care  and   diligence. 


TABLE  OF  CASES— PART  II.  xxiii 

SEARLES  v.  RAILWAY  COMPANY,  32  W.  VA.  370— Con- 
tinued. 

Va.;  Farish  v.  Riggles,  11  Gratt.  697;  R.  R.  Co.  v.  Wight- 
man,  29  Gratt.  431. 

SHEFF  v.  CITY  OF  HUNTINGTON,  16  W.  VA.  307. 
341,n.  Proximate  cause  of  injury — Remote  cause  of  injury. 
W.  Va.;  Elaine  v.  R.  R.  Co.,  9-253. 

SHEPPARD  v.  INSURANCE  COMPANY,  21  W.  VA.  368. 

SHREWSBURY  v.   TUFTS,   41  W.  VA.   212. 
156,b.  Contracts    by    correspondence    construed. 

W.  Va.;  Coal  Company  v.  Richter,  31-858. 
158,g.  Statement  of  accounts — Opportunity  to  discover  errors. 
W.  Va.;  Ruffner  v.  Hewitt,   7-585. 

Va.;  Robertson  v.  Wright,   17   Gratt.    534;    Townes   v. 

Birchett,  12  Leigh.  173. 
159,h.  Same — Burden  of  proof. 

Same  authorities  as  above. 

160,1.  Contracts   of  employment — Interpretation   of  and  acquies- 
cence in. 

Same  authorities  as  in  next  below. 
161,m.  Same — Acquiescence  inferred. 

W.  Va.;  Ruffner  v.  Hewitt,  7-585. 

Va. ;  Robertson   v.    Wright,    17    Gratt.    534;    Townes    v. 
Burchitt,  12  Leigh.  173. 

SIMMONS  v.  INSURANCE  COMPANY,  8  W.   VA.  474. 

SISK  v.  HURST,  1  W.  VA.  53. 

SKEELS  v.  RAILROAD  COMPANY,  3  W.  VA.  556. 

125,a.  Special   contract — As   to   exemption   from    liability   under. 
W.  Va.;  Rathbone  v.  R.  R.  Co.,  1-106. 

SKIDMORE  v.  RAILROAD  COMPANY,   41   W.   VA.   293. 

SMITH   v.    RAILWAY   COMPANY,   48   W.   VA.    69. 
137,e.  Unauthorized   assault    on    passengers — Disorderly    conduct 

of  passenger — Preponderance  of  evidence. 
W.  Va.;  Akers   v.    DeWitt,   41-229;    Claiborne   v.   Ry.   Co., 
36-363;  Gillingham  v.  R.  R.  Co.,  35-588. 

SNODDY   v.   CITY   OF   HUNTINGTON,   37   W.   VA.    111. 
338,h.  Grading  and  paving  streets — Requirements  of  corporation 

while   improvements    being   made. 

W.  Va.;   Brown  v.  Huntington,  35-682;  Chapman  v.  Milton, 
31-387. 


xxiv  TABLE  OF  CASES— PART  II. 

SNODDY  v.  CITY  OF  HUNT1NGTON,  37  W.  VA.  Ill — 

Continued. 

-OOJ.  Physical  and  mental  suffering — Exemplary  damages. 
W.  Va.;   Phillips    v.    City    of    Huntington,    35-406. 

SNYDER  v.   ELECTRICAL  COMPANY,   43   W.   VA.   661. 
''.oO,j.  Unavoidable  accidents — Violation  of  duty. 

W.  Va.;   Berns  v.  Coal  Co.,  27-285;  Clark  v.  R.  R.  Co.,  39- 

732;    Poling  v.  R.  R.  Co.,  38-645. 
Va.;  R.  R.  Co.  v.  Whittington,  30-810. 

SPICER  v.  RAILWAY  COMPANY,  34  W.  VA.   514. 
3(J7,g.  Warning  signals — Statutory  requirements  as  to. 

W.  Va.;  Code,  Ch.  54,  Sec.  61. 

364,1).  Use  of  track  as  a  foot  path-1— Duty  of  persons  so  using  to 
exercise  care  and  precaution. 

va.;   R.  R.  Co.  v.  Sherman,  30  Gratt.  602. 

365,c.  Same — Risks  assumed   by  persons   using   track  as  a  foot- 
path. 

W.  Va.;  Hawker  v.  R.  R.  Co.,  15-628. 
Va.;  R.  R.  Co.  v.  Harmon,  83-554. 

3bo,d.  Requirements   to    look   for   approaching    trains — Contribu- 
tory negligence. 
W.  Va.;   Beyel  v.  R.  R.  Co.,  34-538;   Hawker  v.  R.  R.  Co., 

15-629. 
365,e.  Same. 

STATE  v.  ALLEN,  45   W.  VA.   65. 
178,b.  Circumstantial  evidence — What   the   circumstances   should 

exclude. 

W.  Va.;   State  v.  Evans,  33-417;   State  v.  Flanagan,  26-116. 
257,c.  Previous  threats — When  they  do  not  justify  homicide. 
W.  Va.;   State  v.  Abbott,  8-741. 

STATE  v.  ALLEN,   48   W.   VA.   154. 

106,b.  Party   leaving   the  State  not  entitled  to  exemption    from 
execution. 

Va.;  Clark  v.  Ward,  12  Gratt.  440;   Long  v.  Ryan,  30 
Gratt.  718;   Moore  v.  Holt,  10  Gratt.  289. 

STATE  v.  BICKEL,  53  W.  VA.  597. 
STATE  v.  BINGHAM,  42  W.  VA.  234. 
STATE  v.  BOOM  COMPANY,  41  W.  VA.  796. 
117J.  Criminal  liability  of  boom  owner  for  obstructing  floatable 

streams  by  the  construction  of  dams. 

W.  Va.;  City  of  Moundsville  v.  R.  R.  Co.,  37-92;    State  v. 
R.  R.  Co.,  37-108. 


TABLE  OF  CASES— PART  II.  xxv 

238,d-  Same  as  117,j. 

237,a.  What  deemed  a  floatable  stream. 

W.  Va.;  Moundsville  v.  R.  R.   Co.,   37-92;    State  v.  R.   R. 
Co.,  37-108;  Watts  v.  R.  R.  Co.,  39-196. 

STATE  v.   CAIN,   20   W.  VA.   679. 

253,d.  Apprehension  of  danger — What  to  be  based  on. 

Va.;   Stoneman's  case,  25  Gratt.  887. 

245,e.  How  murder  in  the  second  degree  elevated  to  murder  in 
first  degree. 

Va.;  Hill's  case,   2   Gratt.   595. 

STATE  v.  CLARK,  51  W.  VA.  457. 

260, a.  Right  to  kill  to  prevent  a  felony — Unlawful  trespass  on  the 

property  of  another. 
W.  Va.;   State  v.  Mann's,  48-480. 

Overruling  Point  1.  Syllabus  in  State  v.  Ziegler,  40  W.  Va. 
593.  Citing  also  Honesty's  Case,  81  Va.  283,  and 
Reed's  Case,  22  Gratt.  924,  as  to  old  grudge  between 
the  parties. 

STATE  v.  DAVIS,  52  W.  VA.  224. 

245,h.  Intent  to  kill — Extenuating  circumstances. 

W.  Va.;   State  v.  Cain,  20-679;  State  v.  Jones,  20-764;  State 
v.  Robinson,  20-743. 

STATE  v.   DICKEY,   48   W.   VA.   325. 

180,a.  Credibility  of  witnesses — What  Considered  in  determining 
— Jury  sole  judges  of  the  evidence. 
Va. ;  Brown  v.  Com.,  86  Va.  466;  Delaplain  v.  Crenshaw, 
15  Gratt.  427. 

STATE  v.  DODDS,  54  W.  VA.  289. 

186,a.  Degrees   of   punishment — What   verdicts   permitted   under 

indictment  for  murder — Punishment  imposed. 
W.  Va.;   State  v.  Cain,  20-679;  State  v.  Welch,  36-690. 

Va. ;  Burgesses's  Case,  2  Va.  Cases,  483;   Jones'  Case, 
1  Leigh.  611;  Whiteford's  Case,  G  Rowl  671. 
Hill's  case,  2  Gratt.  595. 

STATE  v.  DOUGLASS,  28  W.  VA.  279. 

261,b.  Capacity  for  knowing  consequences   of  act — Capacity  for 
premeditation. 

<W.  Va.;   State   v.   Robinson,    20-713. 
184,h.  When  intoxication  does  not  excuse  homicide. 

W.  Va.;   State   v.    Robinson,    20-713. 


xxvi  TABLE  OF  CASES— PART  II. 

STATE  V.  EDWARDS,  44   W.   VA.   521. 

290,b.  Unwilling  relinquishment  of  possession  of  goods  not  es- 
sential— Obtaining  goods  by  felonious  false  representa- 
tions— Felonious  conversion  of  goods  without  consent 
of  owner. 

Va.;  Archibald  v.  Com.,  24  Gratt.  563;  Dowdy  v.  Com., 
9  Gratt.  727;  Fay  v.  Com.,  28  Gratt.  912;  Left- 
witch  v.  Com.,  20  Gratt.  716;  Price  v.  Com.,  21 
Gratt.  846. 

STATE  v.  EMBLEM,  44  W.  VA.  521. 

STATE  v.  EMBLEM,  56  W.  VA.  678. 
264c.  Same — Knowledge  of  former  owner  of  purpose  for  which 

house  was  to  be  used. 
W.  Va.;   State    v.    Emblem,    44-521. 

STATE  v.  EVANS,  33  W.  VA.  417. 
STATE  v.  GAUGHAN,  55  W.  VA.  692. 

108,a.  Betting  and  gaming — Character  of  devices  used. 
W.  Va.;  Code,  ch.  151. 

Va.;  Huff's  case,  14  Gratt.  648;  Nuckoll's  case.  32 
Gratt.  884;  Wyatt's  case,  6  Rand.  694. 

STATE  v.  GREER,  22  W.  VA.  800. 
247,m.  Intoxication  of  accused. 

Citing  the  Cain  Case,  20  W.  Va.  679. 

STATE  v.  HARRISON,  36  W.  VA.  729. 

183, d.  Mental  capacity  for  knowing  consequence  of  act. 
W.  Va.;   State  v.  Robinson,  20-713. 

STATE  V.  HATFIELD,  48  W.  VA.  561. 
247,1.  Provoking  the  affray — Seeking  deadly  combat. 

Va.;  Vaiden  v.  Com.,  12  Gratt.  717. 
174,c.  Reasonable  doubt  defined. 
255,a.  When  accused  is  at  fault — Concerning  acts  of  the  deceased. 

Va.;  Vaiden  v.  Com..  12  Gratt.  717. 
256,b.  Same. 

262, a.  Degrees  of  punishment — Whether  murder  in  first  or  sec- 
ond degree — Additional  findings. 
W.  Va.;   State  v.  Staley,  45-792. 

STATE  v.  HEATON,  23  W.  VA.  773. 
290,c.  Larceny — When    person    charged    with    burglary    may    be 

convicted   of   larceny. 
W.  Va.;   State  v.  McClung,  35-280. 


TABLE  OF  CASES— PART   II.  xxvii 

STATE  v.  HERTZOG,  65  W.  VA.  74. 

184,g.  Intoxication — When  evidence  as  to  is  competent  for  con- 
sideration of  jury. 
W.  Va.;   State  v.  Robinson,  20-740. 
261,c.  Same. 

STATE  v.  HOBBS,  37  W.  VA.  812. 

245,f.  How  murder  in  the  second  degree  elevated  to  murder  in 
the  first  degree. 

W.  Va.;   State  v.  Cain,  20-679. 
250,c.  What  required  to  reduce  homicide  to  manslaughter. 

W.  Va.;   State  v.  Cain,  20-679. 

STATE    v.    ICE,    34    W.    VA.    244. 

STATE  v.  JOHNSON  &  DEVINNY,  49  W.  VA.  684. 

STATE  v.  KERNS,  47  W.  VA.  266. 

STATE  v.  KOHNE,  48  W.  VA.  335. 

254, e.  Mutual  combat — Death  ensuing  from — What  accused  must 
show. 

STATE  v.  LOWE,  21  W.  VA.  783. 

170,a.  'Statute  providing   for  prosecution   of   offenses   committed 
within   one   hundred  yards   of   county   line,   but  in  an- 
other county,  held  unconstitutional. 
W.  Va.;  Constitution,  Art.  3,  Sec.  14. 

STATE  v.  LOWRY,  42  W.  VA.  205. 

STATE  v.  MANNS,  48  W.  VA.  480. 

255,i.  Homicide — What  prosecution   required   to  prove. 

W.  Va.;   State    v.    Cain,    20-679;     State    v.    Kerns,    47-266. 
Va.;  Honesty's    case,    81-253;    Parrish    v.    Com.,    81-1; 

Stoneman's  case,  25  Gratt.  900. 
258, b.  Right   to    kill   in   defense    of   familyor    habitation — Right 

to  repel  force  by  force. 
W.  Va.;   State  v.  Cain,  20-679. 

Va.;  Honesty's    case,    81-283;    Parrish    v.    Com.,    80-1; 

Stoneman's  case,  25  Gratt.  900. 

258,c.  Same — Apparent  or  necessary  force  required. 
259,d.  Same — Fierceness    of    the   assault — Fear    of   great    bodily 

harm. 
Same  authorities  as  258,b. 


xxviii  TABLE  OF  CASES— PART  II. 

STATE  v.  McBEE,  52  W.  VA.  267. 

378,a.  Sabbath   breaking — Work  of  necessity  or  charity — Burden 

of   proof. 
W.  Va.;   State  v.  R.  R.  Co.,  24-783  and  15-362. 

STATE  v.  MEADOWS,  18  W.  VA.  658. 

107,a.  Person   charged  with  attempting   to  commit  a   felony  on 
one  cannot  be  convicted  of  attempt  on  another. 
Va.;  Com.  v.  Woodson,  9  Leigh.  669;  Deveriux  v.  Com., 
2  Va.  Cases,  379;  Howell's  case,  5  Gratt.  664. 

STATE  v.  MAIER,  36  W.  VA.  757. 

262,e.  Insanity — Sufficient  power  of  mind  to  distinguish  between 

right  and  wrong. 
W.  Va.;   State  v.  Harrison,  36-729. 
183,c.  Insanity — Fanciful  grounds  for  believing  person  insane — 

How  considered. 
W.  Va.;   State  v.  Douglass,  28-297;    State  v.   Harrison,  36- 

729;   State  v.  Robinson,  20-713. 
184,f.  Same — Mental  abberration. 

W.  Va.;   State  v.  Harrison,  36-729. 

STATE  v.  McGAHAN,  48  W.  VA.  438. 

356,a.  Houses    kept    for    entertaining    prostitutes — Improprieties 

permitted   in   house. 
W.  Va.;   State  v.  Gilmore,  29-641;  State  v.  Halida,  28-499 

STATE  v.  MORGAN,  35  W.  VA.  260. 
STATE  v.  MORRISON  49  W.  VA.  210. 
STATE  v.  PINE,  56  W.  VA.  1. 
STATE  v.  ROBERTS,  50  W.  VA.  422. 
STATE  v.  ROBINSON,  20  W.  VA.  713. 

260,a.  Intoxication — Capacity  for   knowing   consequences   of  act. 

Va.;   Boswell  v.  Com.,  20  Gratt.  860. 
183,e.  Mental  capacity  for  knowing  consequence  of  acts. 

Va.;  Boswell's  case,   20  Gratt.   860. 

STATE  v.  SHEPPARD,  49  W.  VA.  582. 

177,a.  Circumstantial  evidence — Character  of  circumstantial  evi- 
dence necessary  for  conviction — Competency  of  circum- 
stantial evidence. 
W.  Va.;  State  v.  Baker,  33-319;  State  v.  Flanagan,  26-117. 


TABLE  OF  CASES— PART  II.  xxix 

STATE  v.  SHORES,  31  W.  VA.  491. 

120,g.  Larceny  openly  committed. 

Va.;  Vaughan's    case,    10    Gratt.    764. 

STATE  v.  STALEY,  45  W.  VA.  792. 

181,e.  Credibility  of  witnesses — Weight  of  evidence. 

W.  Va.;   State  v.  Hurst,  11-51;   State  v.  Thompson,  21-741; 

Va.;  McDowell  v.   Crawford,   11   Gratt.   405. 
257,d.  Previous  threats — Must  be  accompanied  by  overt  acts. 
W.  Va.;   State  v.  Greer,  22-800. 

Va.;   Hill  v.   Com.,   2   Gratt.   595. 

STATE  v.  SWIFT,   35  W.  VA.  544. 

287,a.  Receiving  orders  for  sale  of  intoxicating  liquors. 

W.  Va.;   Shepherd  v.  McQuilkin,  2-90;  State  v.  Oilman,  33- 
146;    State   v.   Hughes,    22-743. 

STATE  v.  THOMPSON,  21  W.  VA.  741. 

18l,d.  Credibility   of  witnesses — Testifying    falsely. 
W.  Va.;   State  v.  Betsall,  11-740. 
Va.;  Brown's  case,   2  Leigh.  769. 

STATE  v.  TUCKER,  52  W.  VA.   420. 

246J.  Implied    malice  —  Implied    willfulness,    deliberation    and 

premeditation. 
W.  Va.;   State   v.   Cain,   20-679;    State   v.   Bougies,   28-279; 

State  v.  Welch,  36-690. 

Va.;  Hills's  Case,  2  Gratt.  595;  Honesty's  Case,  81-292; 
Jones's  Case,  1  Leigh.  598;  Murphy's  Case,  23 
Gratt.  690;  Wright's  Case,  75-90. 

STATE  v.  WELCH,  36  W.  VA.  690. 

246, i.  Implied  malice — When  malice  may  be  inferred. 
W.  Va.;   State  v.  Cain,  20-679. 

Va.;  Hill's  case,  2  Gratt.  595;  Jones's  case,  1  Leigh. 
98;  Murphy's  case,  23  Gratt.  690;  Wright's  case, 
75-90. 

246,k.  Duration  of  existence  of  malice. 
Same  authorities  as  248,i. 

STATE  v.  WILLIAMS,  40  W.  VA.  268. 

121,1.  Larceny  of  goods  when  no  burglary  committed. 
W.  Va.;   State  v.  McClung,  35-280. 


xxx  TABLE  OF  CASES— PART  II. 

STEVENS  v.  FRIEDMAN,  58  W.  VA. . 

103,d-  Assault  and   battery — Damages   resulting   from — How   de- 
termined— Punitive   damages. 

W.  Va.;  Mayer  v.  Frobe,  40-246,  overruling  Beck  v.  Thomp- 
son, 31-459  and  Pegram  v.  Storts,  31-220;   Riddle 
v.   McGinnis,   22-277. 
Va.;   Borland   v.    Barrett,   76-128. 
203,q.  Same  as  above. 

STEWART  v.  RAILROAD  COMPANY,  38  W.  VA.  438. 

374,a.  Injury  to  real  estate  by  railroad  company — Value  of  prop- 
erty   immediately    before    and    immediately    after    con- 
struction of  railroad. 
W.  Va.;  Fox  v.  R.  R.  Co.,  34-466. 

Va.;   Boling  v.   Mayor,   3   Rand.   563;    Storrs   v.   Feick, 

24-606. 
397,a.  Trespass — Possession    of   land — Necessity    for   plaintiff    to 

prove. 
W.  Va.;   Snyder  v.  Meyer,  3-198. 

Va.;  Kincheloe   v.    Tracewell,    11    Gratt.    587. 


T. 


THOMAS  v.  ELECTRICAL  COMPANY,  54  W.  VA.  395. 

228,e.  Cause  of  injury — Preponderance  of  evidence. 
228, f.  Same — Other  than  that  alleged. 

Same  authorities  as  226, a. 

226,a.  Insulation    of   wires — Duty   of    company    as    to — Require- 
ments as  to — Inspection  of  wires. 
W.  Va.;   Snyder  v.  Electical  Co.,  43-676;    Sample  v.  Light 

Co.,  50-474. 

229, h.  Injuries  caused  by  other  than  the  natural  results  of  negli- 
gence of  defendant. 
Same  authorities  as  226,a. 

227,b.  Liability    of    company    for    injuries    resulting    from    im- 
proper insulation. 
Same  authorities  as  226,a. 
227,c.  Same. 
228, d.  Same. 
231,m.  Preponderance  of   evidence — How   determined. 

Same   authorities   as   226,a. 

231,o.  Utmost  caution  required  of  company — Definition  of. 
Same  authorities  as  226,a. 


TABLE  OF  CASES— PART  II.  xxxi 


THOMPSON  v.   DOUGLASS,   35  W.   VA.   337. 

381,a.  Shipment   of  goods   to   wrong   party — Notice   to  seller   of 

mistake  in  shipment. 
W.  Va.;  Bartholomae,  Paull,  18-771. 

THORNBURG  v.  BOWEN,  37  W.  VA.  538. 

106,e.  Actual  possession  "by  purchase  of  goods  assigned — Statute 
of  limitations. 

Va.;   Snbddy  v.  Haskins,  12  Gratt.  363. 

105,c.  Validity   of   assignment — Recordation    of   deed    of   assign- 
ment— Knowledge    of   purchaser   of   goods   assigned    of 
fraudulent    assignment — Statute    of    limitations. 
W.  Va. ;  Landeman  v.  Wilson,  29-702. 

Va.;   Snoddy  v.  Haskins,  12  Gratt.  363. 

105,d.  Sale    of   goods    assigned    for   valuable    consideration — De- 
livery and  possession. 

Va.;  Bickle  v.   Christmas,   76-673;    Callis  v.   Waddy,   2 
Mun.   511;    Rice  v.  White,  4  Leigh.  474. 

TOMPKINS  v.  INSURANCE  COMPANY,  53  W.  VA.  479. 

285,d.  Same — When  at  the  instance  of  insured. 

W.  Va.;  Kuhn  v.  Brownfield,  34-252;   Lawson  v.  Conoway, 
37-159. 

TOMPKINS  v.  KANAWHA  BOARD,  21  W.  VA.  224. 

124,f.  Carrier  not  insurer  of  freight  shipped  by  river — Careless- 
ness and  negligence — Due  diligence. 
W.  Va.;  Elaine  v.  R.  R.,  9-253;  Sheff  v.  Huntington,  16-307: 

Washington  v.  R.  R.,  17-190.. 
210,a.  Loss  of  goods  by  sinking  of  barge — Contract  price  of  sale 

of  goods  the  measure  of  damages. 
W.  Va.;   Boyd  v.  Gunnison,  14-1. 

TRANSPORTATION   COMPANY  v.    SWEET7ER,   25   W. 
VA.  434. 

217,a.  Duress — Excessive   rates — Off-sets — Recovery    of    excessive 
rates  paid  under  duress. 

W.  Va.;  R.  R.  Co.  v.  Transportation  Co.,  25  324. 
217,b.  Same — Duress  defined. 

Same  authorities  as  above. 

TRAPNELL  v.  CONKLYN,  37  W.  VA.  242. 

302,a.  Married   woman — How   a   married   woman   may   carry   on 
business — Must  have  separate  estate,  or  live  separate  and 
apart  from   her  husband. 
W.  Va.;   Bailey  v.  Gardner,  31-94. 


xxxii  TABLE  OF  CASES— PART  II. 

TRAPNELL  v.  CONKLYN,  37  W.  VA.  242— Continued. 

Va.;  Campbell  v.  Bowles,  30  Gratt.  652;  Penn  v.  White- 
head,  17  Gratt.  303. 
303,b.  When  properly  a  married  woman  liable  for  her  "husband's 

debts. 
Same  authorities  as  above. 

TRAVIS  v.  INSURANCE  COMPANY,  28  W.  VA.  583. 
TURNER  v.  RAILROAD  COMPANY,  40  W.  VA.  675. 

321,h.  Care  of  master — Right  of  servant  to  rely  on — Carelest  and 

needless  exposure  to  risks  and  danger. 
W.  Va.;  Buring  v.  R.  R.  Co.,  37-502;  Cooper  v.  R.  R.  Co., 
24-237;  Core  v.  R.  R.  Co.,  38-456;  Criswell  v. 
R.  R.  Co.,  30-798;  Daniels  v.  R.  R.  Co.,  36-379; 
Flanagan  v.  R.  R.  Co.,  40-436;  Haney  v.  R.  R.  Co., 
38-570;  Madden  v.  R.  R.  Co.,  28-610;  Johnson  v. 
R.  R.  Co.,  38-206.  See  Jackson  v.  Ry.  Co.,  43  W. 
Va.  380,  over-ruling  numerous  of  the  above  cases. 

U. 

ULLMAN  &  COMPANY  v.  BIDDLES,   53   W.  VA.  415. 
UNFRIED  v.  RAILROAD  COMPANY,  34  W.  VA.  260. 
V. 


VALE  v.   SUITOR  &  DUNBAR,   58  W.  VA. 


165,w.  Contracts  —  Failure    to    procure    help  —  Duty    to   procure 

help. 

W.  Va.;  James  River  &  Kanawha  Company  v.  Adams,  17 
Gratt.  427. 

VEITH  v.  SALT  COMPANY.  51  W.  VA.  96. 

232,a.  Explosions — Injury  to  property  caused  by  the  explosion  of 
a  boiler — Presumption  that  person  in  performance  of 
lawful  act  has  done  his  duty. 

W.  Va.;   Best  v.    R.   R.   Co.,   35-492;    Snyder   v.   Electrical 
Co.,  43-661. 

VINAL  v.  CORE,   18  V.r.  VA.   1. 

2^9,g.  Malicious  prosecution — Acquittal  of  charge — Prime  facie 
evidence  of  want  of  malice. 

Va.;  Mowery  v.  Miller,  3  Leigh.  561;   Scott  v.  Sheldon, 
28  Gratt.  906;  Springer  v.  Davy,  15  Gratt.  381. 


TABLE  OF  CASES— PART  II.  xxxiii 

VINAL  v.  CORE,  18  W.  VA.  1— Continued. 
298,e.  Probable  cause — What  necessary  to  constitute. 
Same  authorities  as  299, g. 

Va.;  Mowery  v.  Miller,  3  Leigh.  561;   Scott  v.  Shilor, 
28  Gratt.  906;  Spingle  v.  Davy,  15  Gratt.  318. 

VOSS  v.  KING.  38  W.  VA.  607. 

402,h.  Unlawful  entry  and  detainer — Deception  practiced  by  de- 
fendant in  order  to  maintain  possession. 
W.  Va.;  Voss  v.  King,   33-236. 

403,i.  Forfeiture  of  plaintiffs  title — Knowledge  of  defendant  as 
to — Defendant  as  agent  of  plaintiff — Disclaimer  by  de- 
fendant. 
Va.;  Olinger  v.   Shepherd,   12   Gratt.   472. 

W. 

WALDRON  v.  SPERRY,  53  W.  VA.  116. 

•201,m.  Malicious    prosecution  —  Prosecution    without    probable 

cause — Malice  expressed  or  implied. 
W.  Va.;  Harper  v.  Harper,  40-661;    Tavener  v.  Morehead, 

41-116;  Vinal  v.  Core,  18-1. 
Va.;  Jones  v.  Finch,  4-207. 
298,f.  Same  as  201,m. 

WARD  v.  BROWN,  53  W.  VA.  227. 

408,f.  Wills — Bequests  to  others  than  relatives — Consideration  of. 

W.  Va.;  McMechen  v.  McMechen,  17-683. 

411,n.  Attestation   of  will — Necessity   for — Mental   and   physical 
ability    of   testator   to    dissent   from,   and   prevent    the 
signing  and  attestation  of  will. 
W.  Va.;  McMechen  v.  McMechen,  17-683. 

417,z.  Attesting  witnesses  present  at  execution  of  will — As  to 
weight  of  evidence  of  physician  who  attended  testator 
during  his  last  illness. 

W.  Va.;  Jarrett  v.  Jarrett,  11-584;    Nicholas  v.  Kershner, 
20-251;  Webb  v.  Dye,  18-376. 
Kerr  v.  Lunsford,  31-569. 
Va.;  Lambert  v.  Cooper,  29  Gratt,  68. 
412,p.  Attestation  of  will — Necessity  for. 

W.  Va.;  McMechen  v.  McMechen,  17-683. 

WATTS  v.  RAILROAD  COMPANY,  39  W.  VA.  196. 

375,a.  Injuries   to  water  mill — Burden  of  proof — Nominal   dam- 
ages. 
W.  Va.;  Talbott   v.   King,    32-6. 

Va.;  Smart's  case,  27  Gratt.  950. 


xxxlv  TABLE  OF  CASES— PART  II. 

WATTS  v.  RAILROAD  CO.,  39  W.  VA.  196— Continued. 
206,g.  Same  as  above. 

375,b.  Specific  cause  of  injury — Necessity  for  proving. 
Same  authorities  as  375,a. 

WELCH  v.  INSURANCE  COMPANY,  23  W.  VA.  288. 

WHEELING  M.   &  F.   CO.  v.  WHEELING   S.  &  I.  CO.r 
58  W.  VA.  . 

162.0.  Contract — Building    and    construction    contract — Contracts 

with  penalties  attached — Delay  in  completing  work. 
Va.;  Welch  v.  McDonald,  85-500. 

WILSON  v.  CITY  OF  WHEELING,  19  W.  VA.  323. 
WOODELL  v.  IMPROVEMENT  COMPANY,  38  W.  VA.  23. 

327,f.  Master  and  servants — Continuing  in  service  after  knowl- 
edge of  danger. 

W.  Va.;  Humphreys  v.  Railroad  Co.,  33-135. 
306,d.  Ordinary  care — Definition  of. 

W.  Va.;  Downey  v.  R.  R.  Co.,  28-732. 

322.1.  Patent  danger. 

W.  Va.;  Beuring   v.    Ry.    Co.,    37-502;    Knight   v.    Cooper, 

36-232. 
315,e.  Master  and  servant — Machinery   and  structures — Duty  of 

master  not  to  expose  servant  to  perils  or  hazards. 
W.  Va.;  McKelvey  v.  R.  R.  Co.,  35-500;   Johnson  v.  R.  R. 
Co.,  36-73;  Riley  v.  R.  R.  Co.,  37-145. 

WOOLPERT  v.  INSURANCE  COMPANY,  42  W.  VA.  647. 

273,q.  Additional  insurance — Condition  of  policy  against — Nature 
and  extent  of  the  power  and  authority  of  agents. 

W.  Va.;  Coles  v.   Ins.   Co.,   41-261;    Deitz   v.    Ins.   Co.,   31- 

857. 
27t,r.  Same — Knowledge  or  consent  of  insured  as  to. 

Authorities  same  as  above. 
274,8.  Same — Illiteracy  of  insured. 

Same  authorities.  . 

2/5,t.  Prior  insurance — Knowledge  of  agent  as  to. 

Same  authorities  as  above. 
275,u.  Same — Effect  of  prior  policy  being  void. 


INDEX. 

PART  II.-FORMS  OF  INSTRUCTIONS. 


THE  INDEX  TO  PART  I  PRECEDES  THAT  SUBJECT. 

A. 

ABUTTING  OWNERS.    See  SURFACE  WATERS. 
ACCEPTANCE.     See  AGENCY — CONTRACTS. 
ACCIDENTAL  KILLING,  251. 
ACCIDENT  INSURANCE,  284-286. 

ACCIDENTS. 

When  master  not  guarantor  against,  307. 
Unavoidable  accidents,  143,  230. 
Unforeseen  accidents,  123. 

ACCOMMODATION  NOTES.    See  NEGOTIABLE  INSTRUMENTS. 
ACCOMPLICES.    See  CONSPIRACY — CRIMINAL  LAW — HOMICIDE. 

ACCORD  AND  SATISFACTION,  77-79. 
How  plea  of  established,  79. 
Liability  of  creditor  for  negligence  in  collecting  collateral 

assigned,  78. 
What  may  be  pleaded,  77. 

ACCOUNT  STATED,  158. 

ADMISSIONS  AND  CONFESSIONS. 
Of  defendant,  233. 
What  may  be  believed,  and  what  rejected,  186. 


xxxvi  INDEX— PART  II. 

ACQUIESCENCE. 

When  inferred,  161. 

ACTUAL  POSSESSION. 

What  necessary  to  support  claim  of,  84-88. 

ADVERSE  INTERESTS.    See  ADVERSE  POSSESSION — EJECTMENT. 

ADVERSE  POSSESSION,  80-98.    See  also  EJECTMENT. 
Actual  enclosures.  93. 

Actual  possession — At  time  of  and  since  entry,  86. 
Assessment  of  taxes — Life  estate,  96. 
At  time  of  and  since  entry,  86. 
Boundary  lines — How  ascertained,  84. 
Breach  of  covenant   87. 
Color  or  claim  of  title — Distinction  between,  81-84. 

What  party  relying  on  must  show,  81. 
Continuity  of  possession — Necessity  for,  92,  93. 
Holding  by  co-tenant  as  adverse  to  co-tenant,  90. 
Holding  by  tenant  as  adverse  to  landlord,  89. 
Holding  by  vendee  as  adverse  to  vendor,  89. 

Nature  of  title  of  both  landlord  and  tenant,  91. 
In  third  party,  87. 
Quantity    of    land    conveyed — Conveyances    by    metes    and 

bounds,  88. 

Statute  of  limitations,  87,  97,  98. 
Source  of  title,  82. 
Tacking  on  different  adverse  possessions,  92. 

ADVICE  OF  CIVIL  OFFICERS. 

When  party  justified  in  acting  on,  301. 

AGENCY  AND  AGENTS,  98-101.    See  also  CARBIEBS— DAMAGES- 
FALSE     ARREST     AND     IMPRISONMENT  —  INSURANCE  —  REAL 
ESTATE. 
Authority  of — Want  of,  100. 

Scope  of  authority  of,  99,  133,  138. 
Definition  of,  235. 
Concealment  of  facts  by,  101. 
Employment  of  third  party  by,  100. 
False  representations  by,  101. 
Ratification  of  acts  of,  100. 
Relation  between  principal  and  agent,  98. 

ALIBI,  185. 

Failure  of  proof  of,  186. 

Reasonable  doubt  as  to  establishment  of,  186. 


INDEX— PART  II.  xxxvii 

APPREHENSION  OF  DANGER. 
What  must  be  based  on,  253. 

ASSESSMENT  OP  TAXES. 

How  contiguous  tracts  may  be  assessed,  95   224. 
Necessity  for,  223. 
On  life  estate,  96. 

ALTERATION  OF  INSTRUMENTS,  273.    See  also  FORGED  INSTRU- 
MENTS. 

ANIMALS.     See  also  CARRIERS — DAMAGES — RAILROADS. 
Injuries  to  by  railroads,  371-373. 

ARBITRATION  AND  AWARD.     See  AWARDS — INSURANCE. 

ARREST.    See  also  FALSE  ARREST  AND  IMPRISONMENT. 
Of  passenger  on  railroad  train,  133,  134. 

ASSAULT.    See  also  CONSPIRACY — HOMICIDE. 
Brought  on  by  third  party,  247. 
Fierceness  of,  259. 
On  another  in  addition  to  that  made  on  deceased,  248. 

ASSAULT  AND  BATTERY. 

Damages  resulting  from,  103,  203. 

Person  charged  with  conspiracy  may  be  convicted  of,  103. 

Regaining  possession  of  property,  102,  103. 

ASSIGNMENT  FOR  BENEFIT  OF  CREDITORS. 

Actual  possession  by  purchaser  of  goods  assigned,  106. 
Validity  of  assignment — Fraud  in  assignment,  104,  105. 

ASSIGNMENT  WITHOUT  RECOURSE,  112. 
ATTACHMENTS,  106. 

ATTEMPT,  107. 

AWARDS,  107.    See  also  INSURANCE. 
Repudiation  of,  108,  277. 
When  evidence  of  not  required,  279. 

ASSESSMENT  OF  TAXES.    See  TAXES. 


xxxviii  INDEX— PART  II. 


BANKS  AND  BANKING.     See  BILLS  OF  LADING — FORGED  INSTBU- 
MKNTS — NEGOTIABLE  INSTBUMENTS. 

BETTING  AND  GAMING. 

Character  of  devices  used,  108. 

BILLS  OF  LADING,  10d-lll. 

Attachment  of  goods  pledged,  111. 
Evidence  of  special  contract,  123. 
Fraudulent  transfer  of,  109,  111. 
When  admitted  as  evidence,  123. 

BOILER  EXPLOSIONS.    See  EXPLOSIONS. 

BONA   FIDE   PURCHASERS.     See   BONDS — NEGOTIABLE   INSTBU- 

MENTS. 

BONDS. 

Assignment  of  without  recourse,  112. 

BOOKS  AND  PAPERS. 

Where  required  to  be  kept,  276. 

BOOMS   AND    DAMS,    113-118.      See    also    DAMAGES— FLOATABLE 
STBEAMS. 

BOOM  COMPANIES. 

Charter  right  of — Authority  under,  117. 

Criminal  liability  of  boom  owner  for  obstructing  streams,  117. 

Injuries  to  owners  of  water  mills  by  construction  and  use  of 

booms,  115. 
Wrongful  and  negligent  construction  and  use  of,  114. 

BOUNDARIES.    See  also  ADVEBSE  POSSESSION — EJECTMENT. 
Specified  boundaries,  81. 

BOUNDARY  LINES. 
How  ascertained,  84. 

BREACH  OF  COVENANTS,  87-171. 

BREAKING  AND  ENTERING. 
What  constitutes,  118. 


INDEX— PART  II.  xxxix 

BRIDGES.    See  RAILBOADS — CONDEMNATION  PBOCEEDINGS. 
BUILDING  AND  CONSTRUCTION  CONTRACTS.     See  also  CON- 

TBACTS. 

Contracts  with  penalties  attached,  162. 
Delaying  in  obtaining  material,  163. 

BUILDINGS.    See  DAMAGES — MASTEB  AND  SERVANT. 
BURDEN  OF  PROOF.    See  EVIDENCE. 

BURGLARY,  118-122. 

Breaking  and  entering — What  constitutes,  118. 
Criminal  intent — Necessity  for  establishing,  120. 
Dwelling  house — What  constitutes,  121. 

C. 

CAPACITY  TO  COMMIT  CRIME.    See  also  INSANITY  AND  INTOXI- 
CATION. 
Age  for,  185,  252. 

CARE  AND  DILIGENCE. 

Duty  of  carrier  to  exercise,  129,  142. 

Care  and  caution  required  of  person  injured,  390,  396. 

CARRIERS,  122-144.    See  also  CHAPTERS  AND  SUBJECTS — DAMAGES 

— RAILROADS — STREET  RAILWAYS. 
Arrest  of  passengers,  133,  134. 
Assulting  passengers,  137,  138. 
Ejecting  passengers,  135,  137. 
Negligence  of  agents,  130. 
Of  live  stock,  125-129. 
Of  passengers,  129-144. 

Relation  of  carrier  and  passenger,  132,  133. 
Special  contracts,  122,  125. 

CATTLE  GUARDS,  376. 

'CAUSA  MORTIS. 

What  constitutes  gift,  241. 

CHAPTERS  AND  SUBJECTS.    See  between  pages  76  and  77. 

CHARACTER. 

And  the  motive  of  witnesses,  178,  179. 
Of  assault  made  by  deceased,  248. 


xl  INDEX— PART  II. 

CIRCUMSTANTIAL  EVIDENCE. 

In  criminal  prosecutions,  177,  178. 

CIVIL  DAMAGE  ACT,  144. 

Exemplary  damages — Recovery  of,  145,  196,  197. 

COLOR  OR  CLAIM  OF  TITLE.    See  ADVERSE  POSSESSION— EJECT- 
MENT. 

Character  of  deed  which  gives,  81. 

Distinction  between  color  of  title  and  claim  of  title,  82. 

Possession  limited  to,  93. 

To  support  adverse  possession,  81,  82,  221. 

What  party  relying  on  must  show,  81. 
COMMISSIONS.    See  also  AGENCY — CONTRACTS — REAL  ESTATE. 

For  selling  land,  165,  166,  377. 

On  goods  not  sold  and  returned,  167. 

COMPARATIVE  NEGLIGENCE.    See  NEGLIGENCE. 

COMPENSATORY  DAMAGES,  203-213.     See  also  CHAPTERS  AND- 

SUBJECTS. 
Murder  resulting  from,  248. 

COMPETENCY.    See  WITNESSES. 

COMPROMISE  AND  SETTLEMENT.     See  ACCORD  AND  SATISFAC- 
TION. 

CONCURRENT  NEGLIGENCE,  143. 

CONDEMNATION  PROCEEDINGS,  146-151. 

Necessity  for  taking  property — How  determined,   146.     See 

also  TABLE  OF  CASES — R.  R.  Co.  v.  SHEPHERD. 
Title  to,  and  possession  of  property — Necessity  for  proving, 

147. 
When  all  the  property  sought  is  not  required,  151. 

CONSPIRACY,  152-154.    See  also  CRIMINAL  LAW— HOMICIDE. 
Acts  done  in  pursuance  of,  153. 
Definition  of,  152. 
Murder  resulting  from,  248. 
What  necessary  to  constitute  the  offense,  152. 
What  necessary  to  establish,  301. 

CONTINUITY  OF  POSSESSION. 
Acceptance  of,  156,  157. 
Necessity  of,  92. 
Tacking  on  different  adverse  possessions,  92,  93. 


INDEX— PART  II.  xli 

CONTRACTS,    154-170.      See    also    CABBIEKS — INSUBANCE — REAL 

ESTATE — SALES. 
Acceptance  of,  156,  157. 
Ambiguous  contracts,  167. 
Modification  of  167-169,  127. 
Of  employment,  160. 
Revocation  of,  378. 
Separate  and  distinct  contracts,  169. 
Special  contract,  122,  125. 
Verbal  contracts,  380. 

Written  agreements  exclusive  evidence  of,  112,  155,  156,  266, 
Written  contracts,  155-167. 

CONTRIBUTORY  NEGLIGENCE.     See  also  NEGLIGENCE. 
Apportionment  of  negligence,  144. 
Care  required  of  servants — Perilous  positions,  336. 
Concurrent  negligence,  143. 
Definition  of  contributory  negligence,  216. 

CONVEYANCES  BY  METES  AND  BOUNDS,  88. 

CO-TENANTS. 

Holding  adversely  to  co-tenant,  90. 

COUNTIES,  170. 

COVENANTS. 

Breach  of,  87,  171. 

CREDIBILITY   OF   WITNESSES.      See   also   HOMICIDE— JUBY— 

WITNESSES. 

Jury  sole  judges  of,  180. 
Intelligence  and  conduct  of,  180. 
Reasonableness  of  statements  of,  180. 

CRIMINAL  LAW,  172-187.    See  also  CHAPTEBS  AND  SUBJECTS. 

CRIMINAL  INTENT.     See  BUBGLABY — CBIMINAL  LAW — HOMICIDE 
— LARCENY. 

D. 

DAMAGES,  187-213.     See  CHAPTEBS  AND  SUBJECTS,  and  note  on 

page  213. 

Compensatory,  203-213. 
Exemplary,  punitive  or  vindictive,  195-203. 
General  principles,  187-195. 


xlii  INDEX— PART  II. 

DANGEROUS  MACHINERY. 
Injuries  caused  by,  209. 

DANGEROUS  SUBSTANCES. 

Care  and  skill  required  in  handling,  348. 

DEATH  BY  WRONGFUL  ACT.    See  CRIMINAL  LAW— HOMICIDE. 

DEEDS,  213. 

Character  of  that  gives  color  of  title,  81. 

Competency  of  grantor — Mental  capacity,  213. 

Conveying  title,  82. 

Defective  acknowledgment  of  married  women,  214. 

Priority  of  recordation  of,  83. 
DEFENSE  OF  ANOTHER. 

Concerning  right  to  kill  in.  258,  259. 

DEFENSE  OF  ONE'S  FAMILY  OR  HABITATION. 
Right  to  kill  in,  258,  259. 

DEGREES  OF  OFFENSE,  245,  262. 
DEGREES  OF  PUNISHMENT,  186,  262. 

DELEGATION  OF  DUTY.    See  CARBIEBS— MASTEB  AND  SERVANT- 
RAILROADS. 
Liability  of  master.  309. 

DELAY  IN  SHIPMENT,  129. 
DELIVERY.    See  SALES. 
DETINUE,  215. 

DISMISSING  EMPLOYES. 

Duty  of  servant  to  seek  other  employment,  205. 

DISORDERLY  PLACES.    See  NUISANCE. 

DOMICILE. 

Right  to  kill  in  defense  of,  258,  259. 
Sacredness  of,  258. 

DRAINS  OR  SEWERAGE.     See  MUNICIPAL  CORPORATIONS— SUB- 
FACE  WATERS. 
DRUGS  AND  DRUGGISTS. 


INDEX— PART  II.  xliii 

Negligent  sale  of  drugs,  215. 
What  license  not  required  for,  216. 

DURESS,  217. 

Definition  of,  218. 

DWELLING  HOUSE. 
Right  to  defend,  258. 
What  constitutes,  121. 

DYNAMITE.    See  EXPLOSIVES. 

E. 

EJECTION  OF  PASSENGERS.    See  also  CAERIEES. 
Liability  of  carrier  for,  135-138,  189. 
Of  persons  from  freight  trains,  370,  371. 

EJECTMENT,  219-226.    See  also  ADVERSE  POSSESSION. 
Color  of  title — Character  of  deed  which  gives,  221. 
Defeat  of  plaintiff's  claim  by  showing  title  in  another,  220. 
Taxes — Duty  of  land  owner  to  have  land  assessed  for,  223. 

ELECTRICAL  COMPANIES,  226-232. 

Injuries  caused  by  other  than  natural  results  of  negligence  of 

company,  229. 
Liability  of  company  for  injuries  resulting  from  improper 

insulation,  227. 

EMINENT  DOMAIN.     See  CONDEMNATION  PROCEEDINGS. 

ENCLOSURES. 

Possession  limited  to  actual — When,  93. 

What  intruder  not  limited  to,  84. 

ENTRY. 

As  an  element  of  burglary,  118,  119. 

EQUIPMENTS,  139. 
ESTOPPEL.    See  DEEDS. 

EVIDENCE. 

Accord  and  satisfaction,  79. 
Accounts  as,  156. 


xliv  INDEX— PART  II. 

EVIDENCE— Continued. 

Adverse  possession,  81,  98. 

Bills  of  lading  as,  123. 

Boundary  lines  as,  222. 

Conspirators,  153. 

Intoxication — When  competent  for  jury,  184. 

Illiteracy  of  insured,  274. 

In  criminal  prosecutions.    See  CRIMINAL  LAW — HOMICIDE. 

Marekd  lines  and  ancient  fences  as,  222. 

Natural  boundaries  as,  222. 

Required  to  convict  on,  172. 

Of  murder  in  first  degree,  244. 

BURDEN  OF  PROOF. 

Accounts,  159. 

Carriers— Liability  of,  124. 

Conspiracy,  153. 

Construction  and  use  of  booms,  114. 

Contracts,  159. 

Building  and  construction,  163. 
When  self-defense  relied  on,  254. 
Homicide,  254. 

Injuries  to  water-mill  by  R.  R.  Co.,  206. 
Master  and  servant,  332. 
When  homicide  proven,  254. 
When  on  accused,  153. 
When  on  defendant,  153,  353,  382,  389. 
When  on  plaintiff,  149,  280,  373,  378. 

CIRCUMSTANTIAL  EVIDENCE. 

Character  of  necessary  for  conviction  on,  177. 

What  the  circumstances  must  exclude,  178. 

PABOL  EVIDENCE. 

When  terms  of  written  agreement  not  to  be  changed  by,  112, 
113,  155,  156,  266. 

PREPONDERANCE  OF  EVIDENCE. 

How  determined,  231. 

In  criminal  prosecutions.    See  CRIMINAL  LAW — HOMICIDE. 

Means  of  support — Depriving  one  of,  145. 

What  must  be  established  by,  231. 

When  contributory  negligence  relied  on,  143. 

When  defendant  must  have,  332,  333. 

When  plaintiff  must  have,  137,  149,  215,  228,  230,  273,  280. 

EXCAVATIONS.    See  MUNICIPAL  CORPORATIONS. 


INDEX— PART  II.  xlv 

EXCUSE  AND  JUSTIFICATION,  251-262. 

Apprehension  of  danger — What  must  be  based  on,  253. 

Burden  of  proof,  254. 

Fresh  provocation — Old  grudge  between  the  parties,  254. 

Good  character  of  accused,  254. 

Imminence  of  danger — Accused  to  be  judge  of,  252. 

Danger  need  not  be  real,  but  apparent,  252. 
Mutual   combat — Death  ensuing   from — What   accused   must 

show,  254. 
What  prosecution  required  to  prove,  255. 

EXECUTION  OF  WRITTEN  INSTRUMENTS.     See  AGENCY,  CON- 
TRACTS— INSUBANCE — REAL  ESTATE — WILLS. 

EXECUTIONS.    See  ASSIGNMENT  FOB  BENEFIT  OF  CBEDITOBS. 

EXEMPLARY  DAMAGES,  195-203.     See  also  ASSAULT  AND  BAT- 
TEBY — CABBIEBS — CIVIL   DAMAGE   ACT — MALICIOUS    PBOSECU- 
TION — MASTEB  AND  SEBVANT — MUNICIPAL  COBPOBATIONS — SE- 
DUCTION— STBEET  RAILWAYS — TELEPHONE  COMPANIES. 
Definition  of,  196. 

EXEMPTIONS.    See  ATTACHMENTS. 

EXPERT  TESTIMONY.     See  also  EVIDENCE — WILLS — WITNESSES. 
How  testimony  of  expert  witnesses  regarded,  418. 
When  opinions  of  admissible,  418. 

EXPLOSIONS,  232. 

EXPLOSIVES,  233. 

Injuries  caused  by  the  explosion  of  dynamite,  233. 

EXTENUATING    CIRCUMSTANCES,    245.      See    also    CBIMINAL 
LAW — HOMICIDE. 

EXTRAORDINARY  CARE. 
Dangerous  substances,  348. 

EXTRAORDINARY  RISKS,  319. 

F. 

FACTORS.    See  AGENCY. 
FALSE  ARREST  AND  IMPRISONMENT,  202,  234,  236. 


xlvi  INDEX— PART  II. 

FALSE  REPRESENTATIONS,  236. 
By  insured,  272. 
By  seller,  386. 
Fraudulent  intent,  236. 

FELLOW  SERVANTS,  317,  318. 
Brakeman  and  brakemen,  318. 
Negligence  of,  320. 
Promulgation  of  rules  by,  320. 

When  superiority  in  power  does  not  destroy  relationship  of, 
317. 

FELONY. 

Right  to  kill  for  prevention  of,  260. 

FENCES. 

As  an  element  of  proof  in  ejectment,  222. 

FERRIES,  237. 

FIRE  INSURANCE,  266-283. 

Intentional  burning  the  property  insured,  277. 

Proof  of  loss,  278-280. 

Written  agreement  exclusive  evidence  of  contract,  266,  276. 

FIXTURES. 

Reasonable  time  given  lessee  to  remove  from  premises,  357. 

FLOATABLE  STREAMS,  237-239. 

FOREMEN. 

Liability  of  master  for  negligent  acts  of,  312. 

FORFEITURES.     See  ADVERSE  POSSESSION — EJECTMENT. 

FORGED  INSTRUMENTS  AND  FORGERY    239-241. 
Definition  of  forgery,  239. 

FORMER  ADJUDICATION,  301. 

FRAUD.    See  ASSIGNMENT  FOB  BENEFIT  OF  CREDITORS — INSURANCE 
— WILLS. 

FRAUDULENT  CONVEYANCES.     See  ASSIGNMENT  FOB  BENEFIT 
OF  CREDITORS. 

FRAUDULENT  REPRESENTATIONS.     See  AGENCY— INSURANCE 
— SALES. 


INDEX— PART  II.  xlvii 

FRAUDULENT  TRANSFERS.    See  BELLS  OF  LADING — INSURANCE. 

FREIGHT.    See  also  CARRIERS — DURESS. 
Railroads  as  carriers  of,  122-125. 
Steamboats  as  carriers  of,  124. 

FRESH  PROVOCATION,  254. 

FRIGHT. 

Acts  done  by  persons  injured  through,  389. 

G. 

GAMBLING,  108. 

GAS.    See  NATURAL  GAS. 

GAS  LEASES.    See  OIL  AND  GAS  LEASES. 

GIFTS,  241,  242. 

H. 

HEAT  OF  WEATHER. 

Injuries  resulting  from,  127,  128. 

HIGHWAYS.     See  MUNICIPAL  CORPORATIONS. 

HOMICIDE,  243-263.    See  also  CHAPTERS  AND  SUBJECTS — CBIMINAL- 

LAW. 

Excuse  and  justification,  251-262. 
Necessity  for  establishing,  244. 
Whether  murder  or  suicide,  244. 

HOSTILITY  IN  INCEPTION,  88-92. 

HOSTILITY  OF  POSSESSION.    See  ADVERSE  POSSESSION. 

HOUSE  BREAKING.     See  BURGLABY. 

HOUSE  OF  ILL  FAME,  263. 

HUSBAND  AND  WIFE.     See  CIVIL  DAMAGE  ACT — DAMAGES — IN- 
TOXICATING LIQUORS. 


xlviii  INDEX— PART  II. 

I. 
ILLITERACY  OF  INSURED.  274. 

IMMINENCE  OF  DANGER.    See  also  EXCUSE  AND  JUSTIFICATION. 
Accused  to  judge  as  to,  253. 
Belief  of  accused  as  to,  252. 
Danger  need  not  be  real,  but  apparent,  252. 
What  to  be  considered  in  determining  as  to,  253. 

IMPEACHMENT,  179.    See  WITNESSES. 
IMPLIED  CONTRACTS.    See  CONTRACTS — SALES. 
IMPLIED  MALICE,  246.     See  also  HOMICIDE. 
IMPLIED  POWER.    See  AGENCY. 
IMPLIED  WARRANTY.     See  SALES. 

IMPLIED   WILLFULNESS,   DELIBERATION   AND   PREMEDI- 
TATION, 246. 

IMPROVEMENTS. 

Allowance  for,  333. 
Made  upon  property,  88. 

IMPUTED  NEGLIGENCE.    See  NEGLIGENCE. 

INCAPACITY  TO  COMMIT  CRIME.     See  CRIMINAL  LAW— HOMI- 
CIDE. 

INCOMPETENCY.    See  DEEDS — WILLS — WITNESSES. 
.    INCUMBRANCES.     See  INSURANCE. 

INDICTMENT. 

Necessity  for  proving  material  allegations  of,  244. 

INFANTS.    See  CIVIL  DAMAGE  ACT — MINORS — PATENT  AND  CHILD 
— RAILROADS — SECUCTION. 

IMPEACHMENT  OF  WITNESSES.    See  WITNESSES. 

INNOCENCE. 

Presumption  of,  172. 


INDEX— PART  II.  xlix 

INNS  AND  INNKEEPERS,  356. 

INSANITY  AND  INTOXICATION. 

As  elements  of  defense,  182-185;  260-262. 

Capacity  for  knowing  consequences  of  act,  260. 

Capacity  for  premeditation,  261. 

Intoxication  of  accused,  247. 

Intoxication  of  passenger  on  railroad  train,  142. 

Mental  incapacity — When  the  evidence  tends  to  prove,  261. 

Necessity  for  proving — When  relied  on  as  defense,  182. 

Presumption  of  sanity — How  overcome,  182. 

When  intoxication  does  not  excuse  homicide,  184. 

INSULATION  OF  WIRES. 

Duty  of  electrical  companies  as  to,  226. 

Liability  of  company  for  injuries  resulting  from  improper 
insulation,  227,  228. 

INSURANCE,  265-286.   See  also  ACCIDENT  INSURANCE — FIBE  INSUB- 
ANCE — LIFE  INSURANCE. 

INTERLOCKS,  85-87. 

INTENT.     See  also  BUBGLABY,  CRIMINAL  LAW,  HOMICIDE,  INSUB- 

ANCE,  LARCENY. 

Acts  done  by  conspirators,  152,  249. 
Criminal  intent — Necessity  for  establishing,  120. 
Fraudulent  intent,  236. 
Presumption  as  to  in  criminal  prosecution,  118,  245. 

INTOXICATING  LIQUORS,  287.     See  also  CIVIL  DAMAGE  ACT- 
DAMAGES. 

Receiving  orders  for  sale  of,  287. 
Unlawful  sales  of  to  husbands,  287. 
To  minors,  287. 

INVOLUNTARY  MANSLAUGHTER. 
Accidental  killing,  251. 

J. 

JOINT  LIABILITY.    See  NEGOTIABLE  INSTBUMENTS. 

JUDICIAL  SALES. 

Privity  of  estate  between  purchaser  and  legal  owner,  94. 
Title  acquired  at  void  judicial  sales,  94. 


1  INDEX— PART  II. 

JURY. 

Exclusive  judges  of  weight  of  testimony,  179-181. 

JUST  COMPENSATION. 
Definition  of,  208. 

JUSTIFICATION.     See  LIBEL  AND  SLANDER. 


LANDLORD  AND  TENANT,  288. 
Injuries  to  tenant's  property,  288. 

Life  estate  of — Nature  of  title  of  both  landlord  and  tenant,  91. 
Notice  of  change  of  relationship  of,  91. 

When  tenant  not  released  from  payment  of  rent  by  failure 
of  landlord  to  make  repairs,  288. 

LARCENY,  289. 

Essentiality  of  identity  of  goods  stolen,  289. 

Ownership  of  goods — What  deemed  sufficient  to  establish,  290. 

When  openly  committed,  120. 

When  no  burglary  committed,  121. 

LATENT  DEFECTS. 

Master  not  liable  for  injuries  cause  by,  309. 

LEASE  FOR  SPECIFIED  USE,  115. 
LEASES.    See  LANDLORD  AND  TENANT. 

LIBEL  AND  SLANDER,  291. 

Matter  published  In  course  of  judicial  proceedings,  291. 

LICENSE. 

When  does  not  justify  keeping  a  disorderly  house,  356. 

LIENS.    See  INSURANCE. 

LIFE  ESTATE.    See  ADVERSE  POSSESSION — EJECTMENT. 

LIFE  INSURANCE,  283. 

Action  by  insurer  for  cancellation  of  property,  283. 

LIMITATION  OF  ACTIONS,  292.    See  also  ADVERSE  POSSESSION- 
EJECTMENT — INSURANCE — UNLAWFUL  ENTRY   AND  DETAINER. 


INDEX— PART  II. 

LIQUOR  DEALERS. 

Knowledge  of  as  to  sales  to  minors,  145. 

LOCATION.    See  CONDEMNATION  PROCEEDINGS. 

LOGS  AND  LOGGING,  293-295. 

Rules  for  measurement  of  logs  and  timber,  295. 
What  passes  title  to,  293. 


M. 


MACHINERY  AND  APPLIANCES.     See  also  MASTEB  AND  SEB- 

VANTS. 

Character  of  required  to  be  furnished  by  master,  307-312. 
Defects — Knowledge  of  master  as  to.  308. 

MALICE,  246.     See  also  HOMICIDE — LIBEL  AND  SLANDEB — MALICI- 
OUS PROSECUTION. 

Acquittal  of  charge — Evidence  of  want  of,  299. 
Duration  of  existence  of,  246. 
Definition  of,  297. 
Malice  and  want  of  probable  cause  must  be  concurrently 

shown,  296. 

Waiver  of  preliminary  examination — Evidence  of  guilt,  302. 
When  malice  implied,  246. 

MALICIOUS  PROSECUTION,  296-302.    See  also  MALICE. 
MALPRACTICE.    See  PHYSICIANS  AND  SURGEONS. 

MANSLAUGHTER,  249-250.     See  also  CRIMINAL  LAW — HOMICIDE. 
Involuntary — Accidental  killing,  251. 
Voluntary — Definition  of,  249. 
What  necessary  to  reduce  homicide  to,  250. 

MARRIED  WOMEN,  302. 

MASTER  AND  SERVANT,  304-333.    See  also  CHAPTEBS  AND  SUB- 
JECTS. 

Care  required  in  general,  304. 
Contributory  negligence,  325-333. 
Delegation  of  duties  by  master   309. 
Fellow  servants,  317,  318. 
Risks  assumed  by  servants,  318-325. 
Warning,  instructing  and  giving  orders  to  servants,  315-317. 


Hi  INDEX— PART  II. 

MATERIAL.     See  also  CONTRACTS — DAMAGES — MASTER  AND   SER- 
VANT. 
Defects  in,  307-312. 

MEANS  OF  TRANSPORTATION. 

Safe  means — Duty  of  master  as  to,  109. 
When  not  to  be  considered.,  128. 

MEASURE  OF  CARE. 
Definition  of,  306. 

MEDICINE.    See  DRUGS  AND  DRUGGISTS. 

MENTAL  CAPACITY.     See  DEEDS — CRIMINAL  LAW — HOMICIDE — 
WILLS. 

MENTAL  SUFFERING. 

As  an  element  of  damages.  See  ASSAULT  AND  DAMAGES — CAR- 
RIERS— CIVIL  DAMAGE  ACT — EXPLOSIVES — INTOXICATING  LIQ- 
UORS— MALICIOUS  PROSECUTION — MASTER  AND  SERVANT — MU- 
NICIPAL CORPORATIONS — STREET  RAILWAYS — SEDUCTION — TEL- 
EGRAPH AND  TELEPHONE  COMPANIES. 

MESNE  PROFITS,  333. 

MILLS.     See  BOOMS  AND  DAMS. 

MINES  AND  MINING.    See  MASTER  AND  SERVANT. 

MINORS.     See  also  MASTER  AND  SERVANT — PARENT  AND  CHILD — 

RAILROADS. 

Duty  of  master  to  instruct,  315. 
Duty  of  railroads  as  to  children  on  tracks,  367. 
Seduction  of,  387. 
Unlawful  sales  of  liquors  to,  144. 

MISTAKES.    See  also  CONTRACTS — INSURANCE. 
As  to  party  insured,  266,  267. 
Opportunity  to  discover,  158. 

MITIGATION  OF  DAMAGES,  194.    See  also  DAMAGES. 

MODIFICATION  OF  CONTRACTS,  167-169. 

MORAL  CERTAINTY,  ABSOLUTE  CERTAINTY,  175. 


INDEX— PART  II.  liii 

MUNICIPAL  CORPORATIONS,  334-347.     See  also  CHAPTERS  AND 

SUBJECTS. 

Care  and  caution  required  of,  337. 
Ownership  of  or  control  over  streets,  335. 
Powers,  duties  and  liabilities  of,  335. 

MURDER.    See  HOMICIDE. 

MUTUAL  COMBAT. 

Death  ensuing  from — What  accused  must  show,  254. 

N. 

NATURAL  GAS,  348-354. 

Gas  furnished  for  domestic  purposes,  348. 
Obligation  of  consumer  to  keep  fixtures  and  appliances  in 
proper  condition,  352. 

NAVIGABLE     WATERS.       See    BOOM     AND     DAMS — FLOATABLE 

STREAMS. 

NEGLIGENCE. 

Absence  of — When  no  liability  exists,  389. 

Admissions  of  defendant  as  to,  233. 

Agents — Liability  of  carrier  for  negligence  of,  130. 

Apportionment  of,  144. 

Booms — Negligent  construction  and  use  of,  113-115. 

Carriers,  143. 

Causing  death  of  parent,  205. 

•Concurrent  negligence,  143,  353. 

Delay  in  shipments,  126,  127. 

Injuries  resulting  from,  126,  127. 
Drugs,  negligent  sale  of,  215,  216. 
Dynamite — Negligent  use  of,  233. 
Goods — Negligence  in  shipment  of,  124,  125. 
Imputed  negligence — Mutual  negligence,  353. 
Presumption  of,  388. 

When  negligence  of  passenger  does  not  relieve  carrier  from 
liability,  141. 

CONTRIBUTORY  NEGLIGENCE,  139-144;  325-333;  368-369. 

Approaching  trains — Requirements  to  look  for,  365. 

Definition  of,  216. 

Drugs — Negligent  sale  of,  216. 

•Gross  negligence,  369. 

How  responsibility  for  escaped,  390. 


liv  INDEX— PART  II. 

NEGLIGENCE— Continued. 

Injuries  resulting  from  failure  to  keep  sidewalks  in  repair,.    , 

336. 

Negligence  of  street  railway,  389. 
At  private  crossings,  372. 

When  relied  on — Preponderance  of  evidence,  143. 
When  one  of  the  causes  of  injury,  390. 

NEGOTIABLE  INSTRUMENTS    354-356. 
NON-RESIDENTS.    See  ATTACHMENTS. 

NON-PAYMENT  OF  TAXES.     See  ADVERSE  POSSESSION— EJECT- 
MENT. 

NOTICE.    See  also  ADVEBSE  POSSESSION — EJECTMENT — INSURANCE 

— NEGOTIABLE  INSTRUMENTS. 
Of  loss  required  by  insurance  policy,  278-279. 

O. 

OFFER  AND  ACCEPTANCE.     See  CONTRACT— SALES. 
OIL  AND  GAS  LEASES,  357. 
'    OIL  WELLS,  357. 
ORDINANCES.    See  MUNICIPAL  CORPORATIONS. 

ORDINARY  CARE. 
Definition  of,  306. 

No  liability  when  exercise,  123.  .1 

Want  of,  341. 

OWNERSHIP  OF  PROPERTY,  119,  215. 

P. 
PAPER  TITLE.    See  ADVERSE  POSSESSION — EJECTMENT. 

PARENT  AND  CHILD,  359-361.     See  also  CIVIL  DAMAGE  ACT — 
DAMAGES — INTOXICATING  LIQUORS — SEDUCTION. 

PAROL  EVIDENCE.    See  also  EVIDENCE. 

When  not  admissible  as  to  written  contract,  112,  155,  266. 

PARTIALITY. 

Of  testator  toward  children,  409. 


INDEX— PART  II.  lv 

PARTNERSHIP. 

In  profits  and  losses,  269. 

PASSENGERS.    See  also  CARRIERS — RAILROADS. 
Arrest  of,  133,  134. 
Ejectment  of,  135-137. 
Unauthorized  assault  on,  137. 

PASSION. 

Necessary  to  reduce  homicide  to  manslaughter,  250. 

PATENT  DEFECTS.     See  MASTER  AND  SERVANT. 
PERILOUS  EMPLOYMENT.    See  MASTER  AND  SERVANT. 

PERSONAL  PROPERTY. 
Causing  loss  of,  373. 

PHYSICAL    SUFFERING.      See    EXEMPLARY    DAMAGES— MENTAL 
SUFFERING. 

PHYSICIANS  AND  SURGEONS,  362.     See  also  ACCIDENT  INSUR- 
ANCE— WILLS. 

PLEDGE. 

Of  endorsed  bill  of  lading,  110. 

POSSESSION.    See  ADVERSE  POSSESSION — LARCENY. 
Continuity  of — Necessity  for,  92,  93. 
Lengthening,  93. 
Limited  to  color  of  title,  93. 
Tacking  on  different  adverse  possessions,  92. 

PREMEDITATION.     See  also  HOMICIDE. 
As  an  element  of  homicide,  246. 
When  implied,  246. 

PREPONDERANCE  OF  EVIDENCE.     See  EVIDENCE. 

PRESUMPTION.     See  also  CRIMINAL  LAW — HOMICIDE. 

As  to  injuries  caused  by  party  while  in  performance  of  law- 
ful act,  233. 

Of  guilt  in  criminal  prosecution,  245. 
Of  innocence  and  proof  required  to  convict,  172. 
To  be  overcome  by  servant,  310. 

PREVIOUS  THREATS. 

Must  be  accompanied  by  overt  acts,  257. 
When  will  not  justify  homicide,  257. 


Ivi  INDEX— PART  II. 

PRINCIPAL  AND  AGENT.    See  AGENCY— CONTRACTS— INSURANCE 
— MASTEB  AND  SERVANT — SALES. 

PROBABLE  CAUSE.     See  also  LIBEL  AND  SLANDEB— MALICIOUS 

PBOSECUTIONS. 
Definition  of,  297. 

PROMISSORY  NOTES.    See  NEGOTIABLE  INSTBUMENTS. 
PROOF  OF  LOSS.    See  FIBE  INSURANCE. 

PROSTITUTION— HOUSE  OF.     See  HOUSE  OF  ILL  FAME— NUI- 
SANCE. 

PROTEST.    See  NEGOTIABLE  INSTRUMENTS. 

PROVINCE  OF  COURT  AND  JURY. 
Credibility  of  witnesses,  180-182. 
Impeached  witnesses,  179. 
Testimony  of  accused,  179. 

PROVOCATION. 

Fresh  provocation,  254.  t 

Provoking  the  affray,  247. 

PROXIMATE  CAUSE.    See  also  DAMAGES — ELECTRICAL  COMPANIES 

— MASTER  AND  SERVANT — STREET  RAILWAYS. 
Definition  of,  216. 

PUBLICATION. 

Of  alleged  libelous  matters,  291. 

PUNISHMENTS  IMPOSED,  186,  262. 

PUNITIVE  DAMAGES,  195-203.    See  also  DAMAGES. 

Q. 

QUANTITY  OF  LAND  CONVEYED,  88. 

R. 

RAILROADS  AND  RAILROAD  COMPANIES,  363-376.    See  CHAP- 
TERS AND  SUBJECTS. 

See  also  CARRIEBS — CONDEMNATION   PROCEEDINGS — DAMAGES — 
MASTER  AND  SERVANT. 


INDEX— PART  II.  .      Ivii 

RATIFICATION.    See  AGENCY — CONTRACTS — INSURANCE. 

REAL  ESTATE,  377.  See  also  DAMAGES — CONDEMNATION  PRO- 
CEEDING S — R  AILROA  DS. 

REASONABLE  CARE.  See  CARRIERS — DAMAGES — MASTER  AND 
SERVANT  —  MUNICIPAL  CORPORATIONS  —  NEGLIGENCE  —  RAIL- 
ROADS. 

REASONABLE  DOUBT,  172-177. 
Definition  of,  174. 

RECEIPTS.    See  ACCORD  AND  SATISFACTION. 

RECORDING  WRITTEN  INSTRUMENTS.  See  ADVERSE  POSSES- 
SION. 

RECOURSE.    See  BONDS. 

RED  MEN'S  ACT.    See  CONSPIRACY. 

REPRESENTATIONS.  See  AGENCY— FRAUDULENT  REPRESENTA- 
TIONS— INSURANCE — SALES. 

RETRACTION.    See  GIFTS. 

RISKS  ASSUMED.    See  also  MASTER  AND  SERVANT. 

By  persons  using  railroad  track  as  a  foot-path,  365. 

By  servants,  318-325. 

By  lessor  for  boom  purposes,  114. 

ROAD  BEDS  AND  TRACKS,  313-315. 
ROADS.    See  STREETS. 
ROBBERY.    See  BURGLARY. 

RULES. 

Agreement  of  servant  to  obey,  329. 
Right  of  master  to  prescribe,  329. 
Servants'  disobedience  of,  331. 
Servants'  knowledge  of,  331. 
Sufficient  compliance  with,  332. 


SABBATH  BREAKING,  378. 

SALES,  379-387. 

SEDUCTION,  387.    See  also  DAMAGES— PARENT  AND  CHILD. 


Iviii  INDEX— PART  II. 

SEEKING  DEADLY  COMBAT,  247. 

SELF  DEFENSE,  251-262. 

As  to  justification  for  homicide,  251-255. 
When  plea  of  not  available,  255-257. 

SEPARATE  ESTATE  OF  MARRIED  WOMEN. 

When  property  of  liable  for  debts  of  husband,  303. 

SERVANTS.    See  also  MASTER  AND  SERVANT. 
Wrongful  dismissal  of,  306. 

SEWERS.      See    DAMAGES — MUNICIPAL    CORPORATIONS — SURFACE 
WATERS. 

SIDEWALKS.    See  DAMAGES — MUNICIPAL  CORPORATIONS. 

SIGNALS. 

Statutory  requirements  as  to,  366. 

SLANDER.    See  LIBEL  AND  SLANDER. 

SLOT  MACHINES,  108. 

SPECIAL  CONTRACTS.    See  CARRIERS — CONTRACTS. 

STATUTE  OF  LIMITATIONS,  83,  87,  98,  116,  283,  400. 
Against  both  possession  and  title,  97. 

STEAM  BOATS.    See  CARRIERS  OF  FREIGHT. 

STREETS  AND  ALLEYS.    See  also  MUNICIPAL  CORPORATIONS. 
Changing  grade  of,  342-347. 

STREET  RAILWAYS,  388-391.    See  also  DAMAGES. 
Liability  of  as  carrier  of  passengers,  388-391. 

SUICIDE. 

Whether  murder  or,  173,  244. 

SUNDAY.    See  SABBATH  BREAKING. 

SUPERIORITY  OF  TITLE,  85,  97.  See  also  ADVERSE  POSSESSION — 
EJECTMENT. 

SURETYSHIP,  391.    See  also  NEGOTIABLE  INSTRUMENTS. 


INDEX— PART  II.  lix: 

SURFACE  WATERS,  346,  392.    See  also  DAMAGES— MUNICIPAL. 
CORPORATIONS. 

SURVEYS.    See  ADVERSE  POSSESSION — EJECTMENT. 

T. 

TACKING  ON  DIFFERENT  ADVERSE  POSSESSIONS,  92. 

TAXES. 

Forfeiture  for  non-payment  of,  93-97. 

Necessity  for  assessment  and  payment  of,  96,  223. 

How  contiguous  tracts  may  be  assessed,  95. 
Payment  by  one  holding  title  at  void  judicial  sale,  94. 
Title  acquired  at  tax  sale — How  defeated,  95. 

TAX  SALES. 

Title  acquired  by  purchase  at — How  defeated,  95. 

TELEGRAPH  AND  TELEPHONE  COMPANIES,  393-396. 
Rules  of  telegraph  company — Reasonable  rules,  393. 
Repeating  messages,  394.  * 

TENANT. 

Co-tenant  holding  adversely  to  co-tenant,  90,  91. 
Holding  adversely  to  landlord,  89. 

TENANTS  IN  COMMON.     See  ADVERSE  POSSESSION — EJECTMENT. 

THREATS. 

Previous  threats,  257. 

TIMBER.    See  LOGS  AND  LOGGING. 

TITLES.    See  also  ADVERSE  POSSESSION — EJECTMENT. 
Conflicting  titles,  83. 

Not  necessary  that  evidence  of  be  in  writing,  81. 
Source  of  title,  83. 

Title  of  plaintiff — What  necessary  to  defeat  in  action  of  eject- 
ment, 220. 

TORTS.    See  all  general  subjects  under  index  of  DAMAGES. 

TRESPASS. 

Possession  of  land — Necessity  for  plaintiff  to  prove,  397. 

TROVER  AND  CONVERSION,  397. 
TURNPIKE  COMPANIES,  398. 


Ix  INDEX— PART  II. 

U. 

UNAVOIDABLE  ACCIDENTS,  143,  230. 
UNFORSEEN  ACCIDENTS,  123. 
UNDUE  INFLUENCE.    See  WILLS. 

UNLAWFUL    COMBINATIONS.       See     CONSPIRACY— DAMAGES— 
FALSE  ABBEST  AND  IMPRISONMENT. 

UNLAWFUL  ENTRY  AND  DETAINER,  399-404. 
Abandonment  of  possession,  401. 
Within  what  time  action  must  be  brought,  404. 

UTMOST  CAUTION. 
Definition  of,  231. 

VENDOR  AND  VENDEE.    See  also  ADVERSE  POSSESSION. 
Holding  by  vendee  as  adverse  to  vendor,  89. 

VICE  PRINCIPALS.    See  MASTER  AND  SERVANT. 
VINDICTIVE  DAMAGES,  195-203. 

VOLUNTARY  MANSLAUGHTER. 
Definition  of,  249. 

W. 

WARNING. 

Injuries  caused  by  failure  to  give  sufficient,  364,  365,  367. 
Instructing  and  giving  orders  to  servants,  315,  316. 
Statutory  requirements  as  to,  366. 

WARRANTY.    See  SALES. 

WATER  AND  WATER  COURSES,  404. 

WATER  MILLS.    See  BOOMS  AND  DAMS — COVENANTS — DAMAGES — 
RAILROADS. 

WATER    AND   WATER   COURSES,    404.      See    also   FLOATABLE 
STREAMS. 

WEAPONS.    See  CRIMINAL  LAW — HOMICIDE — RAILROADS. 


INDEX— PART  II.  Ixi 

WILLFULNESS.     See  also  CRIMINAL  LAW — HOMICIDE. 
As  an  element  of  homicide,  246. 

WILLS,  406-418. 

Attestation  of — Necessity  for,  411. 

Mental  and  physical  ability  of  testator  to  dissent  from, 

411. 
While  attesting  witnesses  engaged  in  signing  will, 

411,  412. 
Attesting  witnesses — Witnesses  present  at  execution  of  will, 

417. 

Assisting  testator  in  placing  his  signature  to  will,  415. 
Bequests  to  others  than  relatives,  408. 
Capacity  to  make  will — Less  capacity  required  than  to  make 

deed,  407. 
Devisees — Opportunities    of    knowing    mental    condition    of 

testator,  417. 

Expert  witness — How  testimony  of  regarded,  418. 
Favoritism  or  partiality  of  testator  towards  his  children,  409. 
Fickleness  of  testator  as  concern  his  children,  409. 
Fraud  or  undue  influence  in  procurement  of  will,  410. 
Highest  quality  of  mind  not  required  of  testator,  408. 
Incapacity  of  testator — Old  age  of  itself  not  sufficient  evidence 

of,  407,  408. 

Legal  capacity,  when  shown — Effect  of,  407. 
Name  of  testator — Manner  of  placing  signature  of  to  will, 

412-414. 

Manner  of  spelling,  414. 

Physicians — As  to  weight  of  evidence  of  who  attended  testa- 
tor during  last  illness,  417,  418. 
Ratification  of  will  by  testator,  415. 
Weight  of  evidence,  417,  418. 

WITNESSES. 

Character  and  motive  of,  178. 

Credibility  of  witnesses — Weight  of  evidence,  180,  181. 

Jury  sole  judges  of,  180,  181. 
Failure  to  produce — Effect  of,  419. 
Impeached  witnesses — Regarding  testimony  of,  179. 
Intelligence  and  conduct  of  witnesses,  180. 
Reasonableness  of  statements  of,  180. 
Testifying  falsely — Disregarding  testimony  of,  181. 
Testimony  of  accused — How  regarded,  179. 

WRITTEN  AGREEMENTS. 

When  exclusive  evidence  of  contracts,  112,  155,  266. 


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